Law Web: Whether accused can seek production of documents submitted by him to investigating officer not filed with chargesheet at the time of framing of charge?

It is the specific case of the Petitioner that he has

furnished several documents to the Investigating Officer and the

list of documents furnished included the relevant extract of

WhatsApp and i messages exchanged between the Accused and

the Complainant, relevant photographs, flight and hotel

reservations, to demonstrate the consensual relationship between

the couple. The bank statements reflecting the amount

transferred to the complainant and by furnishing the documents

the Petitioner attempted to dispel the case of the prosecution of

forcible sexual intercourse and instead intended to plead a case of

consensual relationship between two adults.

No doubt, these documents were furnished by the

Petitioner to the Investigating Officer, but when he seek these

documents under Section 91, he has to establish necessity or

desirability of its production, which would have to be seen with

reference to the stage, when a prayer is made for its production.

The impugned Judgment has recorded that it is the

accused who had tendered the documents to the Investigating

Officer and therefore he is already in possession of these

documents and hence there is no justification for him seeking

production of these documents.

The aforesaid reasoning has missed out an important

aspect being the documents which the Petitioner is seeking are

sourced from the Investigating Officer since during the course of

investigation they have been submitted to him to rebut the case of the complainant of forcible sexual intercourse and since the

documents are collected during the course of investigation,

though tendered by the Petitioner himself, they are deemed to be

in custody of the Investigating Officer.{Para 21}

22 Through an Application being made under Section 91 of the Code, the Petitioner sought production of those documents, which is desirable for the purpose of trial as the documents collected during the course of investigation by whatever source will have a different connotation if they are produced through the Investigating Officer, as being received by him during investigation instead of the accused producing the same before the Court in his defence.

In the case of Criminal Trials Guidelines Regarding

Inadequacies and Defciencies, in RE (supra), the explanation

appended to Rule 4 has made it imperative to furnish a list of

documents/material which is collected by the Investigating offcer

through whatsoever source, but which do not form part of the

charge sheet and this may include several exculpatory

documents, statements, material etc. which has the potential to

weaken the case of the prosecution and benefit the accused.

23 In order to ensure fair investigation and fair trial to

the accused the Apex Court has formulated guideline No.4 in the

draft rules of Criminal Procedure Code, which contemplate an

indication to the accused about the documents collecting during

the investigation by classifying them, into the documents which

are annexed alongwith the charge sheet to which the accused is

undisputedly entitled to, in the wake of Sub Section (5) of Section

173 of CrP.C. and in another category would fall those documents/ evidence/material which though collected by the Investigating Officer has not been furnished to the Court alongwith the charge sheet/final report. Once the accused is aware that any material/ documents collecting during the investigation process, which has potential of absolving him of the guilt, which is made known to him through the list of documents, exhibits etc. furnished in terms of the explanation to Rule 4 of the Draft Rules, then the accused is entitled to seek those documents through an application under Section 91 of the Code by establishing its necessity and desirability, for the purpose of trial and upon such an application being made the Court shall issue summons to the person in whose possession or power such document or material is believed to be and the Court shall require him to attend and produce it or to produce it as directed.

24 The documents though furnished by the Petitioner to

the Investigating Officer, when directed to be produced through

the orders passed by the court under Section 91 will change its

context, as what is relevant is the source from which the

documents are being produced before the court, i.e. through the

Investigating Officer, which would assume significance. Moreover, there shall be a clarification at this sage about what documents are furnished by the accused as at the time of trial, the Investigating Officer may dispute the documents/material and its contents and therefore if the accused/Petitioner intends to have these documents produced at the time of framing of charge, provided the court is satisfied about its necessity and desirability for the purpose of trial, such application deserve to be granted.

25 Unfortunately, the impugned order failed to consider

this aspect of the matter and the learned Judge has not even

bothered to ensure compliance of Rule 4 of the Draft Criminal

Amendment Rules, which contemplate that a list of

statements/documents, material objects and exhibits that are not

relied upon by the Investigating officer is furnished to the

accused.

Since the inaction on part of the court to exercise the

power under Section 91 of the Code would cause severe and grave prejudice to the Petitioner, who is entitled to summon production of documents, which he had tendered to the Investigating Officer, by setting aside the impugned order, the matter is remanded to the Additional Sessions Judge to secure production of documents sought by the Petitioner in the Application filed under Section 91, as the documents are necessary and desirable for the purpose of trial, which are exculpatory in nature and would enable the accused to prove his innocence, though it is at the stage of framing of charge, as this will assure him, fairness in the trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION(ST) NO.17507 OF 2023

Dr.Sublendu Prakash Diwakar Vs State of Maharashtra

CORAM : BHARATI DANGRE, J

PRONOUNCED ON : 4th DECEMBER, 2023

1 The present petition is filed by the Petitioner, inter

alia, praying for quashing and setting aside of the order dated

29/8/2023 passed by the Addl. Sessions Judge, City Civil and

Sessions Court, Greater Mumbai, rejecting the application fled by

the petitioner under Section 91 of the Code of Criminal Procedure

(for short ‘Cr.P.C’) r/w 165 of the Indian Evidence Act, 1872,

seeking production of documents which were seized by the

Investigating Offcer during the course of investigation of the C.R.,

in which he is arraigned as an accused, but having not been

forwarded to the trial Court along with the charge-sheet.

Heard Advocate Siddhesh Bhole along with Yakshay

Chheda and Gautam Khazanchi i/b SSB Legal & Advisory for the

Petitioner, who is opposed by Shri S.R. Agarkar, learned APP for

the State.

2 The brief background facts would reveal that the

present Petitioner is arraigned as an accused in C.R.No. 278/2020

registered on 14/10/2020, at Bandra Kurla Complex Police

Station in Mumbai, which invoked Section 376, 376(2)(n), 506

Indian Penal Code and also Section 66(E) of the Information

Technology Act.

The subject C.R came to be registered on a complaint

filed by the complainant, aged 32 years, who allege that taking

advantage of the friendly relationship shared by her with the

accused, and also of the distorted relationship with her own

husband, the accused established physical relationship with her

on the pretext of marriage on 24.04.2019 and he clicked

photographs of her in an objectionable position and she accused

him of using this material to coerce her to accompany him at

various hotels situated at various locations and established

physical relationship, without her consent and against her will.

On completion of investigation, the charge-sheet is filed

in the competent Court which is accompanied with documents

which, according to the Petitioner, have been selectively

presented before the competent Court.

The Petitioner availed transit bail from Patiala House

Court, Delhi, and thereafter, fled an Anticipatory Bail Application

under Section 438 of Cr.P.C, before the Sessions Judge, City Civil

and Sessions Court, Mumbai, since the crime was registered in the

police station which fell within its jurisdiction. Along with the

application, the petitioner enclosed conversation between him and

the complainant in form of Whatsapp chats and he also enclosed

payment receipts, demonstrating that he had spend substantial

amounts on the complainant and her husband.

While the Petitioner was admitted to interim

protection, it was observed that, considering the WhatsApp chats,

the possibility of consensual relationship cannot be ruled out.

3 The petitioner joined the investigation and provided

documents/material, so as to demonstrate that the prosecution

case of forcible sexual intercourse as alleged by the complainant,

is false and the extract of WhatsApp and I-messages exchanged

between the Petitioner and Complainant, demonstrated the falsity

of the allegations made in the complaint. He also provided the

details of the fight and hotel reservations made by the Petitioner

during the consensual relationship and several photographs,

depicting that the complainant was happy in the company of the

Petitioner at various places, were also tendered, so as to establish

that they shared a relationship which was mutual.

Apart from this, various bank statements from the

bank account of the Petitioner, reflecting the monetary

transactions with the complainant and her husband were also

tendered to the Investigating Officer. The WhatsApp chats

between the complainant and the Petitioner from 6/4/2017 to

18/3/2020 was tendered specifically to demonstrate that there

was no forcible relationship, but the physical relationship

maintained with the complainant was with her consent.

4 The interim protection granted in favour of the

petitioner was confirmed on 6/7/2021 and what is important to

note is, that the Court clearly observed as under :-

“7……... The documents placed before me including

the chats between the applicant and prosecutrix prima

facie shows that they had very smooth relationship for

considerable period of time which included trips, outings

and shopping. They have even shares their personal chats

of their respective spouses with each other. The

prosecutrix has not made any complaints against the

applicant about forcible sexual relationship or any false

promise of marriage in the chats on record. Therefore,

prima facie, possibility of consensual physical relationship

cannot be ruled out. False promise of marriage is subject of

trial.”

5 The grievance of the petitioner is that on 7/1/2022,

when the charge-sheet was filed before the trial Court, the

Investigating Offcer deliberately withheld the documents

tendered by him during the course of investigation and what the

petitioner expected was a fair investigation and production of

these documents before the Court along with the charge-sheet.

However, on realizing that these documents are relevant to

absolve him of the accusations faced by him, and he moved an

application u/s.91 of the Cr.P.C, seeking production of documents

seized by the Investigating Agency, but not appended with the

charge-sheet.

It is this application, which is rejected by the

impugned order and its perusal would reveal that the sole ground

for declining the application is, that the documents sought to be

produced are already in possession of the petitioner and the

reasoning recorded therein, is assailed in the present petition.

6 The Code of Criminal Procedure has defined the term

‘inquiry’ and also ‘investigation’.

In Section 2, ‘investigation’ under clause (h) shall

include all the proceedings under the Code for collection of

evidence conducted by a police officer or by any person, (other

than the Magistrate) who is authorized by a Magistrate in his

behalf.

Chapter XII of the Code, has compiled the procedure

pertaining to the information received by the police and their

powers to investigate. The Investigating machinery is set rolling

when an information is received of a cognizable offence and upon

completion of investigation, in the manner stipulated in the said

Chapter, the police officer shall submit a report under Section 173

to a Magistrate empowered to take a cognizance of the offence and

the report shall be in the form prescribed by the State

Government, stating that

“(a) the name of the properties;

(b) the nature of the information;

with the circumstances of the case;

(d) whether any offence appears to have been committed

and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so,

whether with or without sureties;

(g) whether he has been forwarded in custody under

section 170;”

Sub-section (5) of Section 173 further provides as under :-

“(5) When such report is in respect of a case to which

section 170 applies, the police officer shall

forward to the Magistrate along with the report -

(a) all documents or relevant extracts thereof on

which the prosecution proposes to rely other than

those already sent to the Magistrate during

investigation;

(b) the statements recorded under section 161 of all

the persons whom the prosecution proposes to

examine as its witnesses.”

Section 7 further stipulate that when the police officer

investigating the case finds it convenient to do so, he may furnish

to the accused copies of all or any of the documents, referred to in

sub-section (5).

7 Another relevant provision in form of Section 207 is

contained in Chapter XV under the caption “Complaints to

Magistrate”. It reads thus:-

“207. Supply to the accused of copy of police report and

other documents – In any case where the proceeding

has been instituted on a police report, the Magistrate

shall without delay furnish to the accused, free of cost,

a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under

section 154;

(iii) the statements recorded under sub-section (3) of

section 161 of all persons whom the prosecution

proposed to examine as its witnesses, excluding

therefrom any part in regard to which a request for such

exclusion has been made by the police officer under subsection

(6) of section 173;

(iv) the confessions and statements, if any, recorded

under Section 164;

(v) any other document or relevant extract thereof

forwarded to the Magistrate with the police report under

sub-section (5) of Section 173;

Provided that the Magistrate may, after perusing

any such part of a statement as is referred to in clause

(iii) and considering the reasons given by the police

offcer for the request, direct that a copy of that part of

the statement or of such portion thereof as the

Magistrate thinks proper, shall be furnished to the

accused;

Provided further that if the Magistrate is

satisfied that any document referred to in clause (v) is

voluminous, he shall, instead of furnishing the accused

with a copy thereof, direct that he will only be allowed to

inspect it either personally or through pleader in

Court.”

By the above provision, an accused is entitled to the

copy of FIR, Police Report, Statements recorded under Sub

Section (3) of Section 161 of the Cr.P.C. of all the persons whom

the prosecution proposes to examine as witnesses, the confessions

and statements recorded under Section 164 and also any other

document or relevant extract thereof, forwarded to the

Magistrate with the Police Report under Sub Section(5) of Section

173 of the Cr.P.C.

8 The right of the accused to be entitled to the aforesaid

documents has been recognized as a part of his right to have a

fair trial and fair investigation, and the Court trying the accused

must ensure fairness of the investigating process. It is the

responsibility of the investigating agency as well as that of the

Courts to ensure that every investigation is fair and it does not

impinge upon the freedom of an individual except in accordance

with law and the right of an accused to ask for such documents,

that he may be entitled to under the scheme contemplated under

the Code and it has been recognized as an established facet of

just, fair and transparent investigation.

On completion of investigation and before submission

of the report to the Court under Section 173, a fair amount of

application of mind on part of investigating agency is

contemplated and the Investigating Officer during the course of

investigation may have collected several documents or seized

them alongwith any record, which may support the conclusion of

the Investigating Officer as regards the offence with which the

accused is charged by him. Though sub section (5) of Section 173

expect, him to forward only such reports/documents which

support the case of the prosecution, there may be some

documents, which have been placed before the Investigating

Officer, either through a witness or through the accused himself,

when he has participated in the investigation process, which are

exculpatory in nature and may throw light upon the innocence of

the accused in contrast to the aim of the prosecution to establish

his guilt. Such documents may come to the aid of the accused to

prove his innocence by dispelling the case of the prosecution. In

such a scenario it is quite possible for the Investigating Officer to

ignore the documents that have come into his possession, either

being seized during the course of investigation or normally

produced by the accused to disprove the accusations levelled

against him and the Investigating Officer would choose to only

forward those documents which are inculpatory in nature.

9 In V.K. Sasikala vs. State represented by

Superintendent of Police (2012) 9 SCC 771, dealt with a situation where the documents sought by the accused are in custody of the Court and he question whether the accused can demand copies/inspection

of the documents not relied upon by the prosecution, but part of

the police report and in custody of the Court at the stage of

Section 313 Cr.P.C. came to be answered by holding that the

accused has a right to ask for all documents that he may be

entitled to and it would cover the documents whether relied on or

not by the prosecution, but filed in the Court and which would

help in determining the truth. It was held that denial of access to

documents in custody of Court, though not relied upon by the

prosecution even at the advance stage of the trial may cause

prejudice to the accused in properly defending her case and

resulting in denial of fair trial.

The appellant was permitted to inspect the documents

in custody of the Court to avoid any prejudice and their Lordships

of the Apex Court refrain from enlarging the scope of the right of

the accused where such documents are not forwarded by the

Investigating Officer to the Court and restricted their

observations to the unmarked and unexhibited documents being

demanded by the accused which were forwarded to the Court

under Section 173(5) of Cr.P.C., but not relied upon by the

prosecution.

10 The conundrum whether the material filed by the

accused can be considered at the stage of framing of charge was

put to rest by a 3 Judges Bench of the Apex Court in the case of

State of Orissa vs. Debendra Nath Padhi. (2005) 1 SCC 568 and

position of law was crystalized to the effect that at the stage of

framing of charge, the trial Court can consider only the material

produced by the prosecution and there is no provision in the Code

which would confer a right upon the accused to file any material

or document at that stage and this right was held to be available

to the accused only at the stage of trial.

It was also categorically viewed that accused cannot at

the stage of framing of charge invoke Section 91 to seek

production of any document to prove his innocence. Propounding

upon the production of documents under Section 91 of the Cr.P.C.,

the Apex Court held as under :-

“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 offcer 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.”

It was thus held that the 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 with a word of caution being expressed that law

does not permit a roving or fishing enquiry.

11 In case of Rukmini Narvekar vs. Vijaya Satardekar &

Ors., (2008) 14 SCC 1, the issue of all the material produced by

the defence at the stage of cognizance or framing of charge, once

again surfaced before a two Judge Bench and it was held that it

cannot be said as an absolute proposition that under no

circumstances can the Court look into the material produced by

the defence at the time of framing of charge, though this should be

done in very rare cases i.e. where defence produces some material

which convincingly demonstrate that the whole prosecution case

is totally absurd or concocted.

The Division Bench, however, pronounced upon the

width of the powers of the High Court under Section 482 of the

CrPC and Article 226 of the Constitution of India, which was held

to be unlimited, whereunder in the interest of justice, the High

Court can make such order as may be required to secure the ends

of justice and to prevent abuse of the process of any Court and

therefore in the proceedings taken under Section 482 Cr.P.C, the

Court is free to consider the material that may be produced on

behalf of the accused to arrive at a decision whether the charge

as framed could be maintained.

12 Recently the three Judges Bench of the Apex Court in

Criminal Trials Guidelines Regarding Inadequacies and

Defciencies, in RE vs. State of Andhra Pradesh & Ors. (2021) 10

SCC 598, in the suo motto proceedings initiated under Article 32

noticed deficiencies which occurred in course of criminal trials

and certain practices adopted in criminal proceedings which

included the documents i.e. list of witnesses, list of exhibits, list of

material, referred to or presented and exhibited and the end

result of the directives is the Draft Rules of Criminal Practice

2021.

Directions were issued to all High Courts to take

expeditious steps to incorporate the Draft Rules 2021 as part of

the Rules governing criminal trials and ensure that the existing

rules, notifications, orders and practice directions are modified

and promulgated within 6 months of passing of the order.

The State Government as well as Union of India were

directed to carry out consequential amendments to their police

and other Manuals within a period of 6 months.

13 Rule 4 of the Draft Criminal Rules and Practice 2021

related to supply of documents under Section 173,207 and 208 of

Cr.P.C. which reads thus :

“4. Supply of Documents Under Sections 173, 207 and 208

Cr.P.C.

Every Accused shall be supplied with statements of

witness recorded under Sections 161 and 164 Cr.PC and a list

of documents, material objects and exhibits seized during

investigation and relied upon by the Investigating Officer (I.O)

in accordance with Sections 207 and 208, Cr. PC.

Explanation: The list of statements, documents,

material objects and exhibits shall specify statements,

documents, material objects and exhibits that are not relied

upon by the Investigating Offcer.”

14 The reading of the above Rule alongwith the

explanation appended thereto, has conferred a right upon the

accused, to be supplied with the statement of witnesses recorded

under Section 161 and 164 of the Cr.P.C. and a list of documents,

material and objects and exhibits seized during the investigation

and relied upon by the Investigating Offcer, but the explanation

appended to the Rule made it imperative, also to provide a list of

statements, documents, material objects and exhibits, that are not

relied upon by the Investigating Officer, which necessarily

contemplate that the accused shall be entitled to know about the

details of the material collected by the Investigating Officer during

investigation though it is not relied upon by the Investigating

Officer.

In case of P. Ponnusamy vs. State of Tamil Nadu 2022 SCC Online 1543 the directions issued in suo motu Writ Petition (cri) No.1/2017 was once again deliberated upon and the following observations would reveal that without the adoption of the Draft Rules, benefit of Rule 4 deserve to be extended to an accused and the specific observations need a reproduction :-

“16. That some High Courts or governments of the

States/Union Territories have failed to comply with this

court's order and are delayed in adopting the Draft Rules

or amending the concerned police/practice manuals,

cannot prejudice the right of an accused (to receive this

list of the statements, documents, material, etc. in the

possession of the prosecution), which has unequivocally

been recognized by this court in its final orders of the suo moto

proceedings (paragraph 11, extracted above), itself.

Further, to say that the judgment in Manoj in relation to

this, and the right of the accused to receive the said list of

documents, material, etc. would only apply after the draft

rules are adopted-would lead to an anomalous situation

where the right of the accused in one state, prejudicially

differs from that afforded to an accused, in another.

“17. As stated earlier, the requirement of disclosure

elaborated on in Manoj, not only was premised on the

formulation of draft rules, but normatively premised on

the ratio of the three-judge bench decision in Manu

Sharma (supra). In these circumstances, the proper and

suitable interpretation of the disclosure requirement in

Manoj (supra) would be that:

(a) It applies at the trial stage, after the

charges are framed.

(b) The court is required to give one

opportunity of disclosure, and the accused may

choose to avail of the facility at that stage.

court should exercise its discretion, having regard

to the rule of relevance in the context of the

accused's right of defence. If the document or

material is relevant and does not merely have

remote bearing to the defence, its production may

be directed. This opportunity cannot be sought

repeatedly-the trial court can decline to issue

orders, if it feels that the attempt is to delay.

(d) At the appellate stage, the rights of the

accused are to be worked out within the

parameters of Section 391 CrPC.”

The above observations are further emphasized by holding

that the accused always has a right to fair trial, but what is

reiterated is that this right is manifested in the fair disclosure as

elaborated above.

15 A three Judge Bench of the Apex Court in case of

Manoj & Ors. vs. State of Madhya Pradesh, (2023) 2 SCC 353,

once again pronounced upon the scope of Section 207 and 208

Cr.P.C. as regards the duty of disclosure of Public Prosecutor and

the observations made in case of Manu Sharma vs. State (NCT of

Delhi), (2010) 6 SCC 1, were reproduced in Para 202 to the

following effect :

“202. Relevant extracts that merit repetition are:

(Manu Sharma case 3, SCC pp. 80-81, paras 199 & 201-

202)

"199. It is not only the responsibility of the

investigating agency but as well as that of the courts to

ensure that investigation is fair and does not in any way

hamper the freedom of an individual except in accordance

with law. Equally enforceable canon of the criminal law is

that the high responsibility lies upon the investigating

agency not to conduct an investigation in tainted and

unfair manner. The investigation should not prima facie be

indicative of a biased mind and every effort should be

made to bring the guilty to law as nobody stands above law

dehors his position and influence in the society.

201. Historically but consistently the view of this

Court has been that an investigation must be fair and

effective, must proceed in proper direction in consonance

with the ingredients of the offence and not in haphazard

manner. In some cases besides investigation being

effective the accused may have to prove miscarriage of

justice but once it is shown the accused would be entitled

to definite beneft in accordance with law. The

investigation should be conducted in a manner so as to

draw a just balance between citizen's right under Articles

19 and 21 and expansive power of the police to make

investigation. These well-established principles have been

stated by this Court in Sasi Thomas v. State, State of T.N. v.

Surya Sankaram Karrí and T.T. Antony v. State of Kerala".

202. In Nirmal Singh Kahlon v. State of Punjab this

Court specifically stated that a concept of fair investigation

and fair trial are concomitant to preservation of the

fundamental right of the accused under Article 21 of the

Constitution of India. We have referred to this concept of

judicious and fair investigation as the right of the accused

to fair defence emerges from this concept itself. The

accused is not subjected to harassment, his right to

defence is not unduly hampered and what he is entitled to

receive in accordance with law is not denied to him

contrary to law.”

Referring to the material which was suppressed by the

prosecution, specifically the call details record, the relevant

paragraph in the context of Section 91 and 243 Cr.P.C. in Manu

Sharma was reproduced to the following effect :-

“217. Section 91 empowers the court to summon

production of any document or thing which the court

considers necessary or desirable for the purposes of any

investigation, inquiry, trial or another proceeding under

the provisions of the Code. Where Section 91 read with

Section 243 says that if the accused is called upon to

enter his defence and produce his evidence there he has

also been given the right to apply to the court for issuance

of process for compelling the attendance of any witness

for the purpose of examination, cross-examination or the

production of any document or other thing for which the

court has to pass a reasoned order."

16 In the wake of evolution of the above principle of law it

is now imperative for the prosecution, as a matter of rule, in all

criminal trials to comply with Rule 4 of the Draft Guidelines

approved by the Apex court to be adopted by all States and

furnish the list of statements, documents, material objects and

exhibits, which are not relied upon by the Investigating Officer

and the duty is cast upon the presiding officer of the court in

criminal trials to ensure compliance with the Rules.

Needless to state that once a list is furnished, it is

open for the accused to file an application under Section 91 of

Cr.P.C. seeking production of such documents and in such a

contingency the trial Court by exercising its discretion having

regard to the rule of relevance in the context of the accused’s

right of defence, shall consider the application. If the document

or material is relevant and does not merely have remote bearing

to the defence, its production may be directed, but if it is of the

opinion that an application is preferred to delay the proceedings

such request can be declined.

Prosecution shall as a matter of rule of fairness ensure the

compliance of the above stipulations.

17 It is in the backdrop of the above exposition of law on

the right of the Accused to fair trial as it surfaces through several

provisions in the Code including Section 207 , the impugned order

will have to be tested.

Section 91 of the Cr.P.C. though having been held not

to be availed at the stage of framing of charge, the exercise of such

power has been justified during the trial, even if such document is

not part of charge sheet and the Apex Court in case of Nitya

Dharmananda Alias K. Lenin and Anr vs. Gopal Sheelum Reddy

also known as Nithya Bhaktananda and Anr, (2018) 2 SCC 93,

by relying upon the decision in the case of State of Orissa vs.

Debendra Nath Padhi, has ruled as under :

8. “Thus, it is clear that while ordinarily the court has to

proceed on the basis of material produced with the

charge-sheet for dealing with the issue of charge but if

the court is satisfied that there is material of sterling

quality which has been withheld by the investigator/

prosecutor, the Court is not debarred from summoning

or relying upon the same even if such document is not a

part of the charge-sheet. It does not mean that the

defence has a right to invoke Section 91 CrPC dehors the

satisfaction of the court, at the stage of charge.”

18 In the facts of the present case, the application was

preferred under Section 91 read with 311 of the Cr.P.C. by the

accused as the documents/materials furnished by the accused to

the Investigating Offcer was not filed alongwith the charge sheet

and a specific accusation was levelled that these documents are

deliberately withheld, which were provided by him during the

course of investigation and they are crucial in demonstrating that

the allegations made by the complainant are false, frivolous and

an afterthought.

According to the learned counsel Mr. Siddhesh Bhole, the

material produced is indispensable to the issue of framing of

charge and it is of sterling quality, which has the potential of

exonerating the accused.

The Application also prayed for a direction to the

Investigating Officer to provide a list of unrelied documents/

material seized during the course of investigation and reliance

was placed on the decision in case of Nithya (supra). The

informant relied upon the decision in case of Debendra Nath Padhi

to support the submission that at the stage of framing of charge

Section 91 cannot be invoked seeking production of documents to

prove his innocence.

19 The Additional Sessions Judge by reproducing Section

91 has concluded as under :

“14. The said provision itself is very clear that, 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. The further provision itself is clear that it can

be invoked when the person who is in possession and

having power of any particular document with him. In

the present mater, admittedly Investigating Officer has

not collected any documentary evidence but, the

accused has come with the case that he has produced

those documents before the Investigating Offcer during

investigation. So the custody of the said documents is

with the accused himself. Accused is custodian of the

documents, though he has produced the copies of those

documents to the Investigating Offcer. Not only this, but

accused has also relied upon those documents alongwith

present application which itself shows, the custody of

those documents with this accused.

15 According to accused, said documents are

necessary for the just decision of the case. If at all the

documents are in the custody of accused himself, there

is absolutely no hurdle to the accused to produce the

said documents straight way in the Court in support of

his defence. It is not the case that the Investigating

Officer is in custody of the said documents, and

therefore, he has directed or to be ordered to produce

the documents. There is absolutely no substance in the

contentions of the accused that the documents, which

are already in his custody and produced by him before

Investigating Officer, has to be ordered to be produced

through Investigating Officer. Accused is not seeking the

production of the documents which were collected by the

Investigating Officer during investigation or the

documents which are not in his possession. So

application filed by the accused is not at all

maintainable.”

20 In the wake of the decision of the Apex Court in the

case of Rukmini (supra) and Nithya (supra), exercise of power

under Section 91 would be justified at the stage of framing of

charge provided the court is satisfied that the material available

investigator which was not made part of the charge sheet has

crucial and significant bearing at the stage of framing of charge.

Ordinarily the court has to proceed on the basis of material

produced with the charge sheet, at the stage of framing of charge,

but if the Court is satisfied that there is material of sterling

quality, which has been withheld by the Investigator/Prosecutor

then the court is not debarred from summoning or relying upon

the same even if the document is not part of the charge sheet.

The word of caution, expressed is the right under Section 91

cannot be invoked sans the satisfaction of the Court at the stage

of framing of charge.

21 It is the specific case of the Petitioner that he has

furnished several documents to the Investigating Officer and the

list of documents furnished included the relevant extract of

WhatsApp and i messages exchanged between the Accused and

the Complainant, relevant photographs, flight and hotel

reservations, to demonstrate the consensual relationship between

the couple. The bank statements reflecting the amount

transferred to the complainant and by furnishing the documents

the Petitioner attempted to dispel the case of the prosecution of

forcible sexual intercourse and instead intended to plead a case of

consensual relationship between two adults.

No doubt, these documents were furnished by the

Petitioner to the Investigating Officer, but when he seek these

documents under Section 91, he has to establish necessity or

desirability of its production, which would have to be seen with

reference to the stage, when a prayer is made for its production.

The impugned Judgment has recorded that it is the

accused who had tendered the documents to the Investigating

Officer and therefore he is already in possession of these

documents and hence there is no justification for him seeking

production of these documents.

The aforesaid reasoning has missed out an important

aspect being the documents which the Petitioner is seeking are

sourced from the Investigating Officer since during the course of

investigation they have been submitted to him to rebut the case of

the complainant of forcible sexual intercourse and since the

documents are collected during the course of investigation,

though tendered by the Petitioner himself, they are deemed to be

in custody of the Investigating Officer.

22 Through an Application being made under Section 91

of the Code, the Petitioner sought production of those documents,

which is desirable for the purpose of trial as the documents

collected during the course of investigation by whatever source

will have a different connotation if they are produced through the

Investigating Officer, as being received by him during

investigation instead of the accused producing the same before

the Court in his defence.