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TMI Blog2019 (9) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 91 Cr.P.C. contending that according to complainant, he gave amount of Rs. 60,00,000/- to the petitioner but he has not mentioned that as to how and when by which mode he gave the same. There is also no whisper about any agreement and consent letter. Further, he contended in his application that to reveal the truth of the case, documents like bank statements, balance sheet, Income Tax Return, agreement and consent letter etc. belongs to complainant are required to show before the Court. Description of desired documents are reproduced as under : 3. The learned CJM has relied upon the judgment of Hon'ble Apex Court in the case of State of Orrisa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 586 and ordered that accused/petitioner can not filed an application under section 91 Cr.P.C at the initial stage of trial when the particular of offence are to be stated. 4. Learned counsel for the petitioner submits that according to complainant in the month of January 2017, he has given 60 Lakh Rupees to the accused/petitioner whereas on 18.11.2016 demonetization started in India and during that period it was very difficult to everyone to withdraw amount as limit for with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision is quoted as under:- "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- (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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 10. In another case Om Prakash Sharma Vs. CBI Delhi reported in (2000) 5 SCC 679 the Hon'ble Apex Court has held as under:- "The powers conferred under Section 91 are enabling in nature aimed at arming the Court or any officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tervene 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." 11. In Debendra Nath Padhi's case, the Hon'ble Supreme Court further considered the matter with reference to its earlier decision in the matter of Om Parkash Sharma (Supra) and found it's observations are obiter dicta, relevant para is quoted as under: - "27. In sofaras 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvene 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 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 Ho'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. 14. Though, the present case is origina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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