Karnataka High Court
Sri A Dinakar Rai vs State By S.H.O Bajape P S on 3 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 9496 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 9496 OF 2021
BETWEEN:
1. SRI. A. DINAKAR RAI,
S/O A. SHEENAPPA RAI,
AGED ABOUT 59 YEARS,
RESIDING AT SABALOOR HOUSE,
KOILA POST AND VILLAGE,
PUTTUR TALUK,
D K DISTRICT-574241.
...PETITIONER
(BY SRI. THARANATH SHETTY, ADVOCATE)
AND:
1. STATE BY S.H.O. BAJAPE P S,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
Digitally signed
by PADMAVATHI
BK 2. SMT. PUSHPA,
Location: HIGH
COURT OF
KARNATAKA
W/O MANJUNATHA,
AGED ABOUT 36 YEARS,
RESIDING AT KOWDOOR,
KOLAMBE VILLAGE,
MANGALURU TALUK,
MANGALURU CITY,
D K DISTRICT - 574 142.
...RESPONDENTS
(BY SRI. I. THARANATH POOJARY, SR. ADVOCATE FOR
SRI. ROHIT URS D, ADVOCATE FOR R2,
SMT.K.P YASHODHA, HCGP FOR R1)
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CRL.P No. 9496 of 2021
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ORDER DATED 26.08.2021 PASSED IN
C.C.NO.3068/2016 ON THE FILE OF THE II-JMFC, MANGALORE
D.K., DISTRICT AND ALLOW THE APPLICATION FILED BY HIM
UNDER SEC.91 OF THE CODE OF CRIMINAL PROCEDURE.
THIS PETITION COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 26.08.2021 passed in C.C.No.3068/2016 pending before the JMFC (II Court), Mangaluru, whereby the learned Magistrate rejects the application filed by the petitioner under Section 91 of the Cr.P.C. seeking summoning of certain documents.
2. Heard the learned counsel, Sri. Tharanath Shetty, appearing for the petitioner and the learned Senior counsel, Sri. I. Tharanath Poojary, appearing for respondent No.2 and Smt. K.P. Yashodha, the learned HCGP appearing for respondent No.1. -3- CRL.P No. 9496 of 2021
3. Brief facts that leads the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:
A complaint is registered by the petitioner against one Chandrahasa T. Ameen and his men before the jurisdictional police in Crime No.57/2015 for offences punishable under Sections 341, 504, 506 read with Section 34 of the IPC. The police after investigation have filed a charge sheet in C.C.No.3567/2018 and the matter is pending consideration. It is claimed on the next day, a counter complaint is registered by the complainant against the petitioner in Crime No.61/2015 for offences punishable under Sections 143, 147, 323, 504, 506 and the charge sheet is filed and the matter is pending in C.C.No.3068/2016. Merit or otherwise of both the charge sheets is not the matter in the subject lis.
3.1. The complainant approaches this Court seeking quashment of the proceedings in C.C.No.3068/2016 registered against the petitioner by the present -4- CRL.P No. 9496 of 2021 complainant. This Court, by its order dated 11.12.2018, dismissed the petition, permitted the petitioner to file an application seeking discharge before the concerned Court.
On dismissal of the aforesaid petition, the petitioner on 06.06.2019, files an application under Section 91 of the Cr.P.C. summoning certain documents in order to prefer a discharge application before the concerned Court. The concerned Court by its order dated 26.08.2021 rejects the application holding that it was not the stage at which the petitioner would be entitled to documents under Section 91 of the Cr.P.C. It is the rejection of the application filed under Section 91 of the Cr.P.C. that drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would contend that, for filing an application seeking his discharge from the array of accused or the allegations, it was necessary for him to place those documents for the perusal of the Court at the time when hearing before charge, so that further trial would have been avoided if those documents were brought on record and would place -5- CRL.P No. 9496 of 2021 reliance upon the judgment in the case of NITYA DHARMANANDA V. GOPAL SHEELUM REDDY1.
5. On the other hand, the learned Senior counsel representing respondent No.2 taking this court through the documents appended would submit that the petitioner did not file an application seeking discharge, but to file a discharge application, he seeks these documents. Even if the discharge application had been filed, an application under Section 91 of the Cr.P.C. was not maintainable. He would submit that it would become maintainable only when the trial commences and the commencement of trial has not yet come about. He seeks dismissal of the petition. The learned Senior counsel would place reliance upon the judgments rendered by the Apex Court in the case of STATE OF ORISSA V. DEBENDRA NATH PADHI2. A later judgment of the Apex Court in the case of M.E. SHIVALINGAMURTHY V. CENTRAL BUREAU OF 1 (2018) 2 SCC 93 2 (2005) 1 SCC 568 -6- CRL.P No. 9496 of 2021 INVESTIGATION, BENGALURU3 and the judgments rendered by the High Court of Madhya Pradesh in the case of SURENDRA KUMAR SHARMA V. RAJU4 and that of High Court of Bombay in the case of MUKESH P. MEENA V. CBI ACB5.
6. I have given my anxious consideration to the submissions made by the learned counsel appearing for the petitioner and the learned Senior counsel appearing for respondent No.2 and have perused the available material on record. In furtherance whereof, the only issue that falls for consideration is;
"Whether the order rejecting the application under Section 91 of the Cr.P.C. holding it to be not maintainable and that stage of proceedings is valid in the eye of law?"3
(2020) 2 SCC 768 4 2019 SCC OnLine MP 5262 5 2021 SCC OnLine Bom 4566 -7- CRL.P No. 9496 of 2021
7. The narration of the events that led to registration of two crimes is not in dispute and is not the issue in the case at hand and therefore, are not reiterated. The only issue that falls for consideration is with regard to an application being filed under Section 91 of the Cr.P.C., the petitioner has approached this Court in Crl.P.No.4315/2018. This court by its order dated 11.12.2018 rejected the petition and permitted the petitioner to avail of remedy of filing of a discharge before the concerned Court and for filing of a discharge, an application is filed by the petitioner before the concerned Court under Section 91 of the Cr.P.C. seeking to issue summons to produce certain documents concerning i.e., wound certificate or other documents, which according to the petitioner would clinch the issue and would obviate necessity of continuance of trial. The concerned Court rejects the application by rendering the following reasons:
"REASONS
6. Point No.1: It is the case of the prosecution that, on 02.04.2016 at about 1.45 pm in -8- CRL.P No. 9496 of 2021 Koudoor, Kolambe Village, Mangaluru, when C.W1 was working in the stone quarry of Chandrahas Ameen, accused all of a sudden came and held her hair and stamped on her back and chest and when C.W2 came to help, accused No.2 pushed her and pulled C.W3 from Tipper lorry and assaulted C.W4 with hands. Accused also abused C.W1 to C.W4 in foul language and threatened to kill them.
7. When the case was set out for charge, he filed the present application under Section 91 of Cr.P.C to summon the documents in order to support his discharge application. It is submitted that Wenlock Hospital endorsement. Case sheets issued by the RTI officer at Wenlock Hospital, C.D.R locations of the accused along with statements given to the police commissioner and photographs are to be summoned, in order to consider the application under Section 245 of Cr.P.C. Therefore, the purpose for whcih the accused has sought the said documents is to consider the discharge application under Section 245 of Cr.P.C.
8. It is a settled principal of law that for dischare of the accused only the prosecution materials have to be looked into and no amount of documents produced by the accused can be looked into for the purpose of discharge. The only duty of the Court while considering the application under Section 245 of Cr.P.C. is to -9- CRL.P No. 9496 of 2021 see if evidence of the witnesses stands un rebutted, the case would end in conviction. As such, at this stage, no purpose would be served if the documents are summoned in order to consider the discharge application.
9. Moreover, accused is always at liberty to obtain the certified copies of the said documents and confront them to the witnesses at the time of their evidence or lead defense evidence with respect to their contention. As such, application under Section 91 of Cr.P.C. is not maintainable at this stage. Accordingly, I pass the following:
ORDER The application filed by the accused under Section 91 of Cr.P.C is hereby rejected."
(emphasis supplied)
8. The learned Magistrate holds that the application under Section 91 of the Cr.P.C. to summon the document in support of a discharge application would not be maintainable at the stage of filing of a discharge application, as it would come about only when the trial would commence. A discharge application would be
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CRL.P No. 9496 of 2021 considered only on the strength of the prosecution documents that are produced at that stage of proceedings.
9. The contention of the learned counsel appearing for the petitioner that in support of filing of a discharge application he does sought to be summoned under Section 91 of the Cr.P.C., ought to have been allowed, is unacceptable, as it would run counter to the judgments rendered by the Apex Court. The Apex Court in the case of DEBENDRA NATH PADHI (supra) has held as follows:
"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
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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 officer 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.
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26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI [(2000) 5 SCC 679 : 2000 SCC (Cri) 1014] . In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] . The contentions based on Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] have been noticed in para 4 as under: (SCC p. 682) "4. The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] laying emphasis on the fact that the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State [(1999) 49 DRJ 202] . Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance,
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desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings."
27. Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable
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CRL.P No. 9496 of 2021 judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.
28. We are of the view that 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. It would also have to be borne in mind that law does not permit a roving or fishing inquiry."
(emphasis supplied) and the later judgment of the Apex Court in the case of M.E. SHIVALINGAMURTHY (supra), wherein it has held as follows:
"18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of
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J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v.
Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 : AIR 2005 SC 359] ).
28. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 CrPC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross- examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the trial court to discharge the accused.
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CRL.P No. 9496 of 2021
29. It is not open to the accused to rely on the material by way of defence and persuade the court to discharge him."
10. It is also germane to notice the judgments rendered by High Courts of Madhya Pradesh and Bombay on the issue in the cases of SURENDRA KUMAR SHARMA and MUKESH P. MEENA (supra), wherein the High Court of Madhya Pradesh in the case of SURENDRA KUMAR SHARMA (supra) at paragraph 13 has held as follows:
"13. On reading of the above cited judgment, it becomes clear that the superior Court can intervene only in case where the discretion exercised by the lower Court neither judiciously nor judicially and there is gross failure to exercise the discretion of the Court. The Superior Court should not interfere in the discretion of the learned lower Court in a routine fashion. It is also manifest from the above cited judgment that the power of Court under Section 91 Cr.P.C. is unlimited but at the same time there is limitation as to which stage or point of time, Court may exercise it power under Section 91 Cr.P.C. The Court has to see the compulsion of necessity and desirability of the
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document to the context of the purpose which is called for. A police officer may file an application under Section 91 Cr.P.C. at any of the stages but the accused can seek such order only at the stage of defence, he has no right conferred to produce document in his possession to prove his defence at the stage of framing of charge. It is also gathered from the judgments of Hon'ble Supreme Court that necessity and desirability of the document is to be examined considering the stage when such a prayer is made and the party who makes it, whether police or accused."
(emphasis supplied)
11. The judgment rendered on 21.01.2022 by the Division Bench of the High Court of Madhya Pradesh in the case of SPECIAL POLICE ESTABLISHMENT V. UMESH TIWARI AND ANOTHER upturned the order passed by the trial Judge permitting the application under Section 91 of the Cr.P.C. at the stage when the trial is yet to commence. The Division Bench of the Madhya Pradesh High Court considers both the judgments of the Apex Court in the case of DEBENDRA NATH PADHI and NITYA DHARMANANDA (supra) and holds that it was not the
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CRL.P No. 9496 of 2021 stage at which the trial Judge ought to have permitted the application under Section 91 of the Cr.P.C. The findings rendered by the Division Bench of the Madhya Pradesh High Court, reads as follows:
"5. Reverting to the factual matrix attending the instant case, it is seen that production has been directed of the cell phone call records of the complainant and some other persons who are said to be somehow connected with the offence in question. The objection taken by the victim is of violation of his right to privacy while the objection taken by the prosecution is that the accused has no right to invoke Section 91.
True it is that the right to privacy of the victim may be breached but if the production of the said call details can assist the Court in discovering truth and rendering justice in the matter then the Court has to adopt the due process before invoking Section 91, by affording opportunity to the person whose right to privacy is likely to be breached. This shall not only take care of the apprehension expressed by the complainant about the alleged breach of privacy but shall also ensure furtherance of the investigation/inquiry/trial/other proceedings in a freeand fair manner thereby rendering justice and avoiding failure of justice. Thus, in the considered
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opinion of this Court, the trial Court ought tohave heard the victim/complainant before passing the impugned order.
6. As regards objection of the prosecution, this Court is of the firm view that except during the pendency of the process of investigation, the accused cannot be denied his right to invoke Section 91. Section 91 admittedly does not in express terms identifies the stakeholder in justice dispensation system who can invoke the said provision, but the content and context of Section 91 implies that the said provision can be invoked by the Court at any stage of investigation, inquiry, trial and other proceedings.
7. The Court can invoke Section 91 either suo moto or on behest of some stakeholder in the process of investigation, inquiry, trial or other proceedings. The cause for invoking Section 91 can arise from any source, be it victim, accused (except during pendency of investigation) and Police. Denying any of the stakeholder, the right to invoke Section 91 may defeat the ultimate object behind Section 91 which is to ensure discovery of truth, rendering of justice and preventing failure of justice. However, any such invocation by any stakeholder at any point of time would be subject to satisfaction of necessity and desirability of that document to the
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process of investigation, inquiry, trial or other proceedings.
8. In view of above discussion, what comes out loud and clear is that by the impugned order the trial Court permitted the respondent accused to invoke Section 91 during pendency of investigation which as per the discussion above is impermissible since the process of investigation is unilateral and out of bounds for the accused.
9. Accordingly, the impugned order challenged herein cannot be sustained in the eyes of law. However, looking to the ultimate object behind Section 91 which is to discover the truth, render justice and prevent failure of justice, if the trial Court feels that the call details as directed to be requisitioned by way of summon by the impugned order are necessary and desirable for the purpose of investigation which is presently pending then the trial Court is free to direct the investigating agency to take the said material into consideration so that the investigation is conducted and concluded in a free and fair manner without any element of prejudice for or again any stakeholder involved."
12. Insofar as the judgment relied on by the learned counsel appearing for the petitioner in the case of
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CRL.P No. 9496 of 2021 NITYA DHARMANANDA (supra), no doubt the Apex Court deviates from the judgment in the case of DEBENDRA NATH PADHI (supra) by holding as follows:
"5. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section
91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the charge- sheet, has crucial bearing on the issue of framing of charge."
(emphasis supplied)
13. The Apex Court holds that the Court being under obligation to impart justice and uphold the law is not debarred from exercising its power in the interest of justice in a given case even if the accused have no right to invoke Section 91 of the Cr.P.C. To exercise this power, the Court must be satisfied with the material available
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CRL.P No. 9496 of 2021 with the Investigator not made a part of the charge sheet which has crucial bearing on framing of the charges. The Apex Court has rendered the judgment in the facts obtaining in the case before it, as the documents that were with the Investigator, which had been withheld, were of that sterling quality that the Court holds that the Court is not debarred from allowing the said application at the stage of charge. In the case at hand, the petitioner files this application, in order to file an application seeking discharge contending that those were the documents that ought to have been procured by the Investigating Officer and make a part of the charge sheet. Since that is not made, proving of the innocence of the petitioner is crippled. The stage of filing the application is commencement of the trial, this has not yet arrived. The petitioner would always be at liberty to file any application after the commencement of the trial under the relevant provisions of law to summon any document in his defence, which is not a part of the charge sheet.
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CRL.P No. 9496 of 2021 With the aforesaid observations, finding no merit in the petition, the petition stands dismissed.
Sd/-
JUDGE SJK