Himachal Pradesh High Court
_______________________________________________________________ vs Manohar Lal on 28 August, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.311 of 2019
.
Date of Decision: 22.8.2019
_______________________________________________________________
State of Himachal Pradesh .........Petitioner.
Versus
Manohar Lal ..........Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner : Mr. Sudhir Bhatnagar and Mr. Sanjeev
Sood, Additional Advocate Generals, with
Mr. Kunal Thakur, Deputy Advocate
r General.
For the respondent : Mr. Rajiv Rai, Advocate.
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 23.1.2019, passed by the Special Judge Ghumarwin, District Bilaspur, H.P., camp at Bilaspur, whereby an application under Section 91 CPC, having been filed by the respondent-accused (hereinafter referred to "the accused"), for issuing direction to the petitioner-State to take into possession and preserve all the CCTV footage of the CCTV cameras installed in the Police Station Ghumarwin, State Bank of Patiala, branch Ghumarwin, HP State Co-operative Bank, Kuthera/Massaur and Ghumarwin-Kuthera Chowk as well as call details of mobile numbers 98058-82219, 98162-21495, 78071-95536, 98572-14434, 94598- 14305 and 88940-74481, came to be allowed, petitioner-State has approached Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -2-this Court in the instant proceedings filed under Section 482 of Cr.PC., praying therein to set-aside aforesaid impugned order.
2. Briefly stated facts as emerge from the record are that the .
respondent -accused, against whom, FIR bearing No. 50/18 dated 16.3.2018, under Sections 20 and 29 of the ND&PS Act, came to be lodged at the PS Ghumarwin, filed an application under Section 91 of Cr.PC, before the court below, praying therein to issue direction to the petitioner-State to take into consideration and preserve all the CCTV footage of the CCTV cameras installed at the places mentioned herein above as well as call details of the mobile numbers, mentioned hereinabove, along with tower locations. The accused averred in the application that they have been falsely implicated in the criminal case vide FIR referred herein above. He further averred that entire story narrated by the police in the FIR detailed herein above, is concocted one because on 15.3.2018, at about 10:00 pm, police in civil dress came to nearby their house at village Khalian and took him, his brother in law namely Bablu and his wife Smt. Sony Bodh to the police Station Ghumarwin for investigation.
Accused averred in the application that if CCTV cameras installed at aforementioned places are perused/preserved, it would be ample clear that they have been falsely implicated. Accused in the application also averred that call details of mobile Nos. 98527-14434 and 94598-14305 of Mahender Singh constable and Sh. Sher Singh SHO for the period starting from 15.3.2018 to 17.3.2018 would bring the truth to the fore. Accused averred that he and his wife time and again requested the SHO Ghumarwin to preserve the CCTV footage of CCTV cameras installed in the areas referred herein above, but no ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -3- action, if any, ever came to be taken at the behest of the SHO, as a consequence of which, he was compelled to file petition (Cr.MMO No. 427 of 2018) before High Court of Himachal Pradesh, wherein this Court directed the .
accused to move appropriate application before the trial Court and as such, application under Section 91 Cr.PC came to be filed before the competent Court of law. Application as referred herein above filed on behalf of the accused came to be resisted by the respondents, who raised preliminary objection with regard to maintainability and claimed that there is no specific provision, if any, under the Code of Criminal Procedure, where such application can be filed. Petitioner-State averred in the reply that at 3:45am, accused alongwtih one Sh. Bablu son of Sh. Jai Ram, were found in conscious possession of the Charas weighing 5.031 kg on 16.3.2018, at a place called Massour Mod and it cannot be said that they have been falsely implicated.
Petitioner State further stated in the reply that court at this stage has no power to direct the concerned person to preserve and give the CCTV footage because investigation is already complete and charge-sheet stands filed in the month of September, 2018. Petitioner-State specifically denied the allegation that accused have been falsely implicated under some criminal conspiracy hatched by the police.
3. Learned trial Court having taken note of the peculiar facts and circumstances of the case as well as law laid down by the Hon'ble High Court of Delhi in case titled Suresh Kalmadi v. CBI in Crl.M.C. No. 2143 of 2015, dated 22.5.2015, allowed the application and directed the petitioner-State to take into possession and preserve all CCTV footage of CCTV cameras installed at ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -4- the places mentioned in the application. Court below also directed the petitioner-State to furnish call details of mobile phone numbers, detail whereof has been given herein above. In the aforesaid background, the petitioner-
.
State has approached this court in the instant proceedings, seeking therein quashment of impugned order being contrary to the facts as well as law.
4. Having heard learned counsel for the parties and perused the material available on record, this Court is unable to agree with Mr. Sanjeev Sood, learned Additional Advocate General, that court below had no competence whatsoever to issue direction to the petitioner-State to take into possession and preserve all the CCTV footage in question because very purpose and object of Section 91 Cr.PC is to discover truth and do complete justice to the case.
5. It has been repeatedly held by the Hon'ble Supreme Court as well as this Court that accused is required to be afforded fair opportunity to prove his/her innocence. Moreover, bare perusal of provisions contained under Section 91 Cr.PC, reveals that application under this provision of law can be made at any stage of trial and scope of Section 91 is very wide and it can neither be restricted only to the documents on which the prosecution relies nor to the stage contemplated by Section 233 or 243 of the Code. Section 91 empowers a Court to ensure production of any document or other thing, "necessary or desirable", for the purpose 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 materials. If, Section 91 Cr.PC is read in its entirety, it clearly reveals that sine qua non for an order under this Section is consideration ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -5- of the Court that the production of the document/material concerned is desirable and necessary for the purposes of trial and as such, objection raised by Sh. Sanjeev Sood, learned Additional Advocate General with regard to .
competence of the court below to cause production of any document or any other thing during the pendency of the trial, deserves outright rejection.
6. Moreover, issue with regard to the competence of the court to ensure production of any document or other thing, "necessary or desirable", for the purpose of any investigation, inquiry, trial or other proceedings under the Code, is no more res-integra, rather has been dealt with elaborately by this Court in its judgment dated 16.4.2018, passed in Cr.MMO No. 484 of 2017 (Ishwar Dass v. State of HP)., wherein this Court while interpreting the scope of Section 91 Cr.PC has categorically held that provisions contained under Section 91 Cr.PC casts a duty upon the court to cause production of document or a thing believed to be in possession of some other person, if it considers production of such document necessary for adjudication of the case. It has been further held by this Court that court will not create evidence in favour of an accused or prosecution but, at the same time, it is bounden duty of the court to discover truth about allegations against the accused.
Issuance of direction, if any, under Section 91, whereby court enjoys power to cause production of document or a thing believed to be in possession of some person, definitely cannot be considered to be creation of evidence in favour of the accused, who makes an application under Section 91.
7. This Court in the aforesaid judgment has held that necessity or desirability would have to be seen with reference to the stage when prayer is ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -6- made for the production. If any document is necessary or desirable for the defence of the accused, 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. Relevant paras of the aforesaid judgment are as follows:-
17. Section 91 pre-supposes that when a document is not produced, process may be initiated to compel production thereof. Any document or thing as envisaged under Section can be produced if it is found that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code. First and the foremost requirement of the section is of the document being necessary or desirable. Necessity or desirability would have to be seen with reference to the stage when prayer is made for the production. If any document is necessary or desirable for the defence of the accused, 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 this section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under this 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 this Section. In so far as accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of his defence.
18. Reliance is placed upon judgment of Hon'ble Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, wherein it has been held as under:
"23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided.
24. On behalf of the accused a contention about production of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under:
"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 ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -7- 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)..........................................................................."
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. In so far 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 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.
26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI, Delhi[(2000) 5 SCC 679]. 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's case (supra). The contentions based on Satish Mehra's case have been noticed in para 4 as under:
::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -8-"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) laying emphasis on the fact 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, 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. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill 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 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 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 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 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.
::: Downloaded on - 29/09/2019 02:46:54 :::HCHP -9-29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in .
the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case."
19. It is quite apparent from the aforesaid exposition of law that necessity and desirability of document sought to be produced with the assistance of the court is to be examined considering the stage when such prayer for summoning and production is made and party which makes such prayer, either police or the accused. But, definitely, application, if any, under Section 91 on the part of accused can be made at the stage of defence.
20. Ratio laid down in aforesaid judgment came to be reiterated in the recent judgment of Hon'ble Apex Court in M/s V.L.S. Finance Ltd. v. S.P. Gupta and anr, Criminal Appeal No. 99 of 2016 decided on 5.2.2016, wherein it has been held as under:
"43. Before we proceed to dwell upon the power of the Magistrate to grant permission for not pressing the application, we think it necessary to delve into legality of the direction issued by the High Court to the Magistrate to consider the documents filed by the accused persons along with the application preferred under Section 91 Cr.P.C. Section 91 Cr.P.C. reads as follows:-
"Section 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) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-::: Downloaded on - 29/09/2019 02:46:54 :::HCHP
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(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 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."
44. The scope and ambit of the said provision was considered in State of Orissa v. Debendra Nath Padhi[17], wherein this Court has held thus:- "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 r 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." The aforesaid enunciation of law clearly states about the scope of Section 91 Cr.P.C. and we are in respectful agreement with the same."
8. It is quite apparent from the aforesaid exposition of law that in criminal trial, prosecution has to be absolutely fair and impartial because main purpose of criminal trial is not to get someone convicted, rather its object is to discover truth and punish the accused, if found guilty. Hon'ble Apex Court in ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP
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V.K. Sasikala v. State (2012) 9 SCC 771, has held that the courts must ensure fairness of the investigative process so as to maintain the citizens' rights under Articles 19 and 21 and also active role of the court in a criminal trial. Hon'ble .
Apex Court has further held that it is responsibility of the investigating agency as well as of Court to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It is also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure.
Relevant paras of the aforesaid judgment are as under:-
217. Further, 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. WhereSection 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.
218. The liberty of an accused cannot be interfered with except under due process of law. The expression "due process of law" shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP
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investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.
9. Hon'ble Apex Court in judgment referred herein above has .
categorically ruled that certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. Very importantly, the Hon'ble Apex Court in the case referred herein above has held that absence of any claim on the part of the accused to the said documents at any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when raised, can be understood and explained in several reasonable and acceptable ways. Difficulty or handicap in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions.
10. In the case at hand, this Court finds that accused repeatedly requested the police authorities to preserve the CCTV footage of the cameras installed at places mentioned in the application, but such requests of him never came to be paid any heed, as a consequence of which, he was compelled to approach this Court earlier in proceedings i.e. Cr.MMO No. 427 o 2018. Information supplied to the accused under RTI Act, clearly reveals that request for preservation of CCTV footage of the CCTV cameras installed at the places as well as call details of the mobile numbers mentioned in the application was made, but no prompt steps, if any, ever came to be taken on behalf of the Investigating Agency to do the needful, as was prayed in the ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP
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application. In the case at hand, the accused are facing trial for a offence, which may entail him punishment i.e. minimum imprisonment for a period of 10 years. Accused are seeking production of CCTV footage, which they feel shall .
help in defending themselves and as such, prosecution cannot be allowed to argue that respondents-accused are trying to make any roving or fishing inquiry or making an unreasonable request. In a criminal trial, the prosecution has to be absolutely fair and impartial and opportunity to the fullest is required to be given to the accused to prove his/her innocence. Moreover, in the case at hand, accused are already behind bars and as such, there appears to be no force in the argument of learned Additional Advocate General that repeatedly applications are being filed by the accused with a sole motto to delay the trial.
11. Consequently, this Court in view of the aforesaid discussion as well as law taken note herein above, sees no reason to interfere in the order impugned herein, which otherwise appears to be based upon proper appreciation of facts as well as law and as such, same is upheld accordingly.
However, taking note of the specific ground raised by the petitioner-State that CCTV footage of CCTV cameras could not be procured without giving opportunity of being heard to the owners of the said CCTV cameras and backup of CCTV camera of PS Ghumarwin cannot be preserved for more than one month as hard disc of 1 TB capacity is used in the said camera, this Court is in agreement with Mr. Sanjeev Sood, learned Additional Advocate General that information, which is either not available or totally impossible to make available, could not have been called for by the court while exercising power ::: Downloaded on - 29/09/2019 02:46:54 :::HCHP
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under Section 91 of the Cr.PC. In view of the above, impugned order passed by the court below is modified to the extent that the petitioner state shall not be liable to produce CCTV footage of the places mentioned in the .
application qua the relevant period. The present petition is disposed of in the aforesaid terms alongwith pending application(s), if any.
22nd August, 2019 (Sandeep Sharma),
(Manjit) Judge.
r to
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