Himachal Pradesh High Court
Ajeet Kumar Pandey vs State Of Himachal Pradesh And Others on 11 May, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 126/2016
Reserved on: May 7, 2016
Decided on: May 11, 2016
.
_________________________________________________________________
Ajeet Kumar Pandey ...........Petitioner
Versus
State of Himachal Pradesh and others ..........Respondents
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1 yes.
of
For the petitioner : Mr. Yowan Sharma, Advocate.
For the respondents : Mr. Neeraj K. Sharma, Deputy
rt Advocate General, for the
respondent-State.
Nemo for respondents No. 2 to 4.
_________________________________________________________________
Rajiv Sharma, Judge (oral)
This petition under Section 482 CrPC has been filed for quashing the criminal complaint dated 18.8.2012, resulting into Sessions Trial No. 22-NL-7-2012 and Order dated 9.11.2015 rendered by the learned Additional Sessions Judge, Solan camp at Nalagarh.
2. "Key facts" necessary for the adjudication of the present petition are that a raid was conducted by the Directorate of Revenue Intelligence on 25.10.2011. Petitioner was not present at the time when raid was conducted. He had resigned. He was not working in the premises for the last fourteen months. He has joined M/s Madhav Biotech Pvt. Ltd.
at Solan. According to the averments made in the petition, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 2respondent Firm was manufacturing drugs in the name and licence numbers of other firms like MPPL Pharma, Rudrapur (UK), Excel Biolife Pvt. Ltd. Vadodra, Tanacia Pharma Barnala.
.
No licence was granted to the Firm. Petitioner has sent his resignation through registered post on 9.8.2010 addressed to the Assistant Drug Controller, Licensing-cum-Controlling Authority, Baddi, Near Bus Stand Baddi, District Solan, HP and of to the Managing Director M/s Ten Star Industries, for accepting his resignation from 16th August, 2010. He has received his last rt salary for the month of June 2010. He was implicated on the basis of letter written by Jasvir Singh Sodhi. He has sought from the State Drugs Controller, Baddi, application/letter dated 9.8.2010 sent by him for resignation from M/s Ten Star Industries, authority letters of the endorsement given to M/s Ten Star Industries, Bagbania, Baddi, District Solan, HP. He has resigned from the parent institute and now started working with M/s Madhav Biotech Pvt. Ltd. Solan since August, 2010.
He was sending money to his parents and wife at Balia, Uttar Pradesh. However, fact of the matter is that the petitioner has not placed on record his salary slip to prove that he was working with M/s Madhav Biotech Pvt. Ltd., Chambaghat. In case, he had sent resignation, he was supposed to retain a copy of the same. Moreover, if the same has been sent by a registered letter, he should be in possession of postal receipt.
::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 33. Petitioner has moved an application under Section 91 CrPC seeking direction for the production of documents mentioned in para 18 of the application. Application was .
rejected by the learned trial Court by a detailed order dated 9.11.2015. Charge has already been framed against accused, on the basis of the material placed on record by the complainant.
Application is premature. Application can be filed at the time of of recoding statements of witnesses and the petitioner can confront him, if found necessary by the Court, by cross-
examining the
rt witnesses with respect to relevancy of a
particular fact. He can also invoke the provisions of Section 160 of the Indian Evidence Act.
4. Their Lordships of the Hon'ble Supreme Court in Om Parkash Sharma v. CBI, Delhi reported in (2000)5 SCC 679, have held that powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer in charge of a police station concerned to enforce and to ensure the production of any document or other things "necessary or desirable" for the purposes of any investigation, inquiry, trial or other proceedings under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 would, no doubt indicate the width of the powers to be unlimited but the inbuilt limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of ::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 4 proceedings as also the compulsion of necessity and desirability, to fulfill the task or achieve the object. The question, at the present stage of the proceedings before the trial Court would be .
to address itself to find where there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce any reliable material even at that stage, which might totally affect even the very sustainability of the case, a of refusal to even look into the materials so produced may result in injustice apart from averting an exercise in futility at the rt expense of the valuable judicial/public time. Their Lordships have further held that it is to be only seen as to whether the trial court has judiciously and judicially exercised its discretion.
Their Lordships have held as under.
"[9] It is settled law that summoning of document is purely a matter concerned with the discretion of the trial Court. But, the discretion shall be exercised properly and judicially. In other words, the trial Court must satisfy itself whether the document on which the accused seeks to rely has a bearing upon or is irrelevant to the case. If, upon satisfying itself that the document has no bearing, the trial Court is well within its powers to decline the prayer and the same can be deemed that it has exercised its discretion judicially. It is also held that while exercising this power, the trial Court should not indulge in fishing or roving enquiry."
5. A learned Single Judge of Calcutta High Court in Ajay Mukherji v. The State and others reported in 1971 Crl.
LJ 1329, has held that the satisfaction of the Court about the necessity of production of documents is a sine qua non of the order under the Section. The learned Single Judge has held as under:
::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 5"[5] There is much force also behind the second submission regarding the non-conformance to the provisions of Section 94. Criminal P.C. As has been observed before, the order dated the 12th December, 1970 is an amalgam order directing the petitioner to produce certain accounts, receipts, vouchers and minutes as referred to therein and also issuing .
summons on him to give evidence. The said order passed by the learned Chief Presidency Magistrate, Calcutta is quite a laconic one and one looks in vain thereto for ascertaining the grounds of his satisfaction or even a consideration as to why he thought it necessary or desirable for the purposes of the trial, that the documents in question should be called for. The sine qua non of an order Under Section 94, Cr.PC is a consideration by the court that the production of the documents concerned was desirable for the purposes of the [trial and on being satisfied in that behalf, to issue summons thereunder. A of failure on the part of the court to do so would result in a non- conformance to the provisions of Section 94, Cr.PC A reference in this context may be made to the case of Hussenbhoy Abdoolabhoy 'Lalji v. Rashid B. Vershi, reported in A.I.R. 1941 Bom 259 (FB) Chief Justice Beaumont delivering the judgment of the court observed at page 260 rt that:
We think the true view is that when an application is made to a court or to a police officer in the mofussil, Under Section 94 for production of documents, the court is bound to consider whether there is a prima facie case for supposing that the documents are relevant. I respectfully agree with the said observation and I look in vain to the impugned order for such a consideration, in the absence whereof the ultimate order passed Under Section 94, Criminal P.C. is not maintainable in law. A reference again may be made to the case off Muhammad Rahim v. Emperor reported in A.I.R. 1935 Sind 13 (FB) wherein it was held that Sections 94 and 257 are not antagonistic but interdependent. It was observed by Ferrers, J. C, that Under Section 94 any party to an enquiry, trial or other proceeding under the Code may at any stage apply to the court to call for the production of a document or other thing and is entitled to its production if he satisfies the court that such production is necessary or desirable for the purposes of such enquiry, trial or other proceeding. The order in question passed by the learned Chief Presidency Magistrate, Calcutta on the 12th December. 1970 does not incorporate any such satisfaction or reason as to why summons Under Section 94, Criminal P.C. was being issued and in the absence thereof the order is not in accordance with law. Mr. Mukherjee's contention that such satisfaction is implied, is not sustainable on ultimate analysis. Satisfaction, following a consideration enjoined in Section 94, Criminal P.C., must be apparent from the body of the order which must ::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 6 be a talking one and an enquiry that reaches the point of hypotheses and assumptions is not an enquiry in conformance to the requirements of the statute. I therefore agree with the submissions of Mr. Dutt and hold that the order in question is not also in accordance .
with Section 94 of the Code.
[6] The point may be approached from another standpoint, namely, a non-conformance to the procedure established by law. In the well- known case of Taylor v. Taylor reported in (1875) 1 Ch D 426, Jessol M. R. observed at page 431 that when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted....
of The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. The King Emperor, reported in (1936) 63 Ind App 372 : A.I.R. 1.936 PC 253 (2). Lord Roche, rt delivering the judgment of the Judicial Committee, observed at pages 381 and 382 that The rule which applies is a different and not less well- recognised rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
A reference again may be made to a later decision wherein the Supreme Court reiterated the said principles in the case of State of Uttar Pradesh v. Singhara Singh reported in . A. K. Sarkar, J. (as his Lordship then was) delivering the Judgment of the court observed at page 361 that the rule adopted in (1875) 1 Ch D 426 is well- recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.
The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.
I respectfully agree with the observations made above and I hold that the order passed by the learned Chief Presidency Magistrate, Calcutta in issuing the summons on the 12th December, 1970 is de hors the provisions of law as enjoined in the Code and not in accordance with the procedure established by law. Such an order is bad and improper and should be set aside. For the reasons given above, the other two orders D/-7-12-1970 and 9- 1-1971 are also found to be bad. The first two ::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 7 contentions of Mr. Dutt, touching procedure, accordingly succeed."
6. A learned Single Judge of Madras High Court in K. .
Sivanandam v. State reported in 1999 Cr.LJ 2442, has held that summoning of document is purely a matter concerned with the discretion of the trial Court. But the discretion is required to be exercised properly and judicially. The learned Single Judge has held as under:
of "[6] The powers conferred under Section 91 are enabling in nature aimed at arming the Court or any officer in charge of a Police Station concenred to enforce and to ensure the production of any document or rt other things "necessary or desirable" for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 would, no doubt, indicate the width of the powers to be unlimited but the in-built limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. The question, at the present stage of the proceedings before the Trial Court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce any reliable material even at that stage which might totally affect even the very sus-tainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving enquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : (AIR 1979 SC 366 : 1979 Cri LJ 154). Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the Court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The Court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a ::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 8 given case the Court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties .
involved in the exercise of judicial discretion by the Court and not of any rights concretised in favour of the accused.
[7] Therefore, it is to be only seen as to whether the Trial Court has judiciously and judicially exercised its discretion. The Trial Court as also the High Court seem to have properly applied their minds by going into the nature of the documents sought to be summoned, their bearing and relevance for the nature of consideration to be made at that stage of the procedings before the Special Judge as well as the of necessity and desirability whereof. The consideration so made by the Courts below in rejecting the claim of the appellant could not be held to be either condemnable or constitute any gross or improper failure to exercise their jurisdiction and consequently, it does not call for any interference in our hands. Therefore, the appeal fails and shall stand rt dismissed."
7. A learned Single Judge of Delhi High Court in Sukhmohinder Singh Sandhu v. CBI reported in 2011 Cr.LJ 903, has held that the accused under Section 91 Cr.P.C. cannot ask the production of documents as a matter of right. However, while making application he has to specify the document and show its relevance. He cannot ask the court to make roving and fishing enquiry as has been done in the applications under consideration. Only when he discloses the nature of document and its relevance, the court to decide if the documents sought to be summoned was necessary or desirable for the just decision of the case . The learned Single Judge has held as under:
"[11] This provisions of Section 91 Cr.P.C. empower a court to summon or order production of any document which it think necessary or desirable for the purpose of inquiry or trial. The word 'document' through not defined in Cr.P.C., however, has been defined in Section 3 of Evidence Act and would mean any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means. The accused under Section 91 Cr.P.C. cannot ::: Downloaded on - 15/04/2017 20:19:53 :::HCHP 9 ask the production of documents as a matter of right. However, while making application he has to specify the document and show its relevance. He cannot ask the court to make roving and fishing enquiry as has been done in the applications under consideration. Only when he discloses the nature of document and its relevance, the court to decide .
if the documents sought to be summoned was necessary or desirable for the just decision of the case."
8. Thus, there is no error in rejecting the application by the trial Court. Moreover, there seems to be no prejudice caused to the accused by mere rejection of the application.
of
9. Accordingly, there is no merit in the present petition and the same is dismissed. Pending applications, if any, are disposed of.
rt (Rajiv Sharma) Judge May 11, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:19:53 :::HCHP