2016 (7) TMI 1698 - HC - Indian Laws

Scope and applicability of Section 91 of the Cr.P.C. - desirability and necessity of the documents to be summoned - trial of the petitioners which is at the stage of pre-charge evidence - Violation of principles of natural justice due to non-issuance of notice to the petitioners - HELD THAT - The facts and circumstances in the present case show that neither any list of witnesses has been furnished with proposed testimony nor any list of documents has been furnished which were to be exhibited through such witnesses to prove the fact and establish the case of the complainant at the pre-charge stage. The applications dated 02.01.2016 and 01.03.2016 have been filed in a casual manner and the orders have been passed in a casual manner without looking into the fact that no list of witnesses was furnished and no summons have been issued for the purpose of summoning the documents for proving a particular fact. The argument advanced by the complainant cannot be taken into consideration in isolation and it needs to be considered with the combined effect of the exercise of the power under Section 91 of the Cr.P.C. The facts narrated on record do not demonstrate the exercise of discretion under Section 91 of the Cr.P.C. in any other circumstance except to facilitate the evidence of the complainant. No question arises to look into the present case of exercising the power under Section 91 of the Cr.P.C. to summon the document except to render assistance and to facilitate the complainant evidence against the petitioners. It is apparent from the arguments advanced that no list of witnesses or list of documents showing its connectivity with the witnesses or to the facts to be established before the Trial Court cannot be treated as proper application for rendering assistance to the Court to facilitate the evidence by way of seeking documents without demonstrating any necessity or desirability - The facts and circumstances non-issuance of notice to the opposite side and impugned orders being non-speaking and without due application of mind as per the law laid down by Hon ble Apex Court culminates into the impugned orders as ineffective redundant and not sustainable in the eye of law and liable to be set aside. This Court is of the considered opinion that while passing the order under Section 91 Cr.P.C. for summoning the documents if the other party has already joined the proceedings it is entitled to be heard. Consequently the orders dated 11.01.2016 and 11.03.2016 are hereby set aside along with proceedings consequent thereto - Undisputedly the complainant always has a right to invoke the provision of Section 91 Cr.P.C. and the Court is always empowered to pass an order in the facts the circumstances of the case keeping in view the necessity and desirability of the document in situations as discussed above and giving due opportunity of hearing to the other party. Petition disposed off.

Summary

Issues Involved:
1. Legality of summoning documents u/s 91 Cr.P.C. without notice to the accused.
2. Necessity and desirability of documents summoned u/s 91 Cr.P.C.
3. Violation of principles of natural justice.

Summary:

Issue 1: Legality of Summoning Documents u/s 91 Cr.P.C. Without Notice to the Accused
The petitioners contended that the Trial Court's orders summoning documents u/s 91 Cr.P.C. were passed without giving them notice or an opportunity to be heard, violating principles of natural justice. The Court noted that any judicial order affecting a party must provide a reasonable opportunity of being heard. The Court emphasized that the right to be heard is intrinsic and instrumental, reflecting the dignity of individuals affected by judicial decisions. The Court held that the impugned orders were passed in a casual manner without due application of mind and without issuing notice to the petitioners, thus violating principles of natural justice and Article 21 of the Constitution of India.

Issue 2: Necessity and Desirability of Documents Summoned u/s 91 Cr.P.C.
The petitioners argued that the Trial Court did not ascertain the necessity or desirability of the documents before summoning them, which is against settled legal principles. The Court reiterated that u/s 91 Cr.P.C., the production of documents must be necessary or desirable for the purposes of investigation, inquiry, trial, or other proceedings. The Court found that the applications for summoning documents were filed in a casual manner without specifying the necessity or desirability of the documents, and the impugned orders were non-speaking, lacking due application of mind.

Issue 3: Violation of Principles of Natural Justice
The petitioners argued that the impugned orders were violative of natural justice as they were passed without giving notice or an opportunity of hearing to the petitioners. The Court agreed, stating that no judicial order can be passed without providing a reasonable opportunity of being heard to the affected party. The Court cited various judgments to support that any action affecting a party must follow the audi alteram partem rule of natural justice. The Court concluded that the impugned orders were passed in violation of natural justice principles.

Conclusion:
The Court set aside the impugned orders dated 11.01.2016 and 11.03.2016 along with the proceedings consequent thereto. The Court clarified that while the complainant has the right to invoke u/s 91 Cr.P.C., any such application must demonstrate the necessity and desirability of the documents and provide an opportunity of hearing to the other party. The complainant is allowed to move a fresh application during the pendency of the proceedings before the Trial Court. The petitions and applications were disposed of accordingly.