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TMI Blog2011 (2) TMI 1631X X X X Extracts X X X X X X X X Extracts X X X X ..... before the learned Trial Court. The prayer in the application was not for the supply of documents relied upon by the prosecution but the Final Report-I (FR-I) and Final Report-II (FR-II) prepared by the erstwhile Investigating Officer DSP Ram Chandra who carried out the investigation of the case from September, 1996 to April, 1997. The contention of the Petitioner was that these final reports showed that the searches were motivated and there were circumstances under which the planting of documents cannot be ruled out and therefore the recovery and possessions of the documents itself was in serious doubt. Shri Ram Chandra DSP, CBI who conducted the investigation from September, 1996 to April, 1997 recorded the statements of the Petitioner, his employees and other income tax Officials and submitted his Final Report - I and further Final Report-II not recommending the prosecution of the Petitioner and the other accused because he was of the view that the recovery of the document itself could not be proved beyond doubt and any further investigation particularly examination of defence personal etc. would not be fruitful. It was thus, the view of the Investigating Officer that a closure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im recourse to Section 124 of the Indian Evidence Act as no public interest would suffer by the production or disclosure of the documents asked for. The CBI manual cannot override the provisions of Code of Criminal Procedure and in any case the same cannot take away the fundamental right of the accused guaranteed under Article 21 of the Constitution of India of a proper defence of his case. Reliance is placed on Neelesh Jain v. State of Rajasthan 2006 Cri L.J. 2151 wherein the Court directed production of documents like photos, love letters between the prosecutrix and the accused Petitioner, some STD bill slips and the ledger book which were though recovered but not filed by the police along with the charge sheet. 4. It is contended that the prosecution is not expected to collect one-sided evidence and present it to the Court. A fair investigation is the hallmark of rule of law. The right to defend which follows from the fundamental right to "life" and "personal liberty" enshrined in Article 21 of the Constitution of India is not an illusionary right but a substantive one. Reliance is place on Navin Ramji Kamani v. Shri K.C. Shekhran, Dy. Chief Controller of Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on State of Orissa v. Debendra N. Padhi, 2005 (1) SCC 568 and Om Prakash Sharma v. CBI, 2000 (5) SCC 679 to canvass that invocation of Section 91 Cr.P.C at the preliminary stage of trial is not permissible. 7. It is contended that the Petitioner is not entitled to ask for the documents which are not relied upon by the CBI and that the Petitioner is only entitled to the documents which are referred to in Section 207 or 208 Code of Criminal Procedure The right of the accused with regard to the disclosure of documents is a limited right and the accused cannot claim an indefeasible legal right to claim documents of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) Code of Criminal Procedure as per the order of the Court. In the present case the complaint was filed under Section 13(3) of the OS Act and the provisions of Section 208 Code of Criminal Procedure are applicable which reads, "Any documents produced before the Magistrate on which the prosecution proposes to rely" and thus what is referred in Section 208(iii) are the documents filed along with the complaint under Section 13 (3) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard of the provisions of law but a mere wrong decision is not amendable to a writ of certiorari. 10. I would now proceed to examine the impugned order passed by the learned Trial Court in the light of the above mentioned decision rendered by the Constitution Bench. The learned Trial Court discarding the plea of privilege raised by CBI, held that from a perusal of the decisions rendered by the Hon'ble Supreme Court and this Court it was clear that copies of all the documents which are to be used against the accused must be supplied to him whether the prosecution terms them to be classified or not. It was held that in the present case the documents sought in the application under Section 91 Code of Criminal Procedure are not being relied upon by the CBI, thus not being used against the accused during the course of the trial and so the accused is not entitled to their production. 11. Section 91 Code of Criminal Procedure states: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of confronting the Investigating Officer as no other witness is bound by it. It is not the case of the Petitioner that DSP Ram Chandra is cited as a witness and these documents are required to confront him. There is yet another fallacy in the argument of the learned Counsel for the Petitioner. It is settled law that the Court while recording evidence has to examine the relevant and admissible statements and documents and not the opinion of the Investigating Officer. 13. In Mohammed Ankoos and Ors. v. Public Prosecutor, HC of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it has been held by the Hon'ble Supreme Court: A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that the accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. The court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any set back in the facts and circumstances of the case. The accused even did not raise this issue seriously before the Trial Court. 15. In Sunita Devi (supra) while dealing with Section 207 and 208 of the Code as regards the documents to be supplied to the accused it was held: 27. The supervision notes can in no count be called. They are not a part of the papers which are supplied to the accused. Moreover, the informant is not entitled to the copy of the supervision notes. The supervision notes are recorded by the supervising officer. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Exports (supra) and held: The power given under Section 91 of the code is a general and wide power which empowers the court, the production of any document or any other thing at any stage of any investigation, inquiry or other proceedings under the Code of Criminal Procedure It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or things was necessary or desirable in its view, then the court could pass an order both in favor of the accused as well as the prosecution. It is no doubt true that such power would not be exercised where the documents or thing may not be found relevant or it may be for the mere purpose or delaying the proceedings or the order is sought with an oblique motive." Similar view has also been expressed in Rajesh Prasad v. State of Rajasthan 1998 (Supp) Cri.L.R.265. 17. The case of the Petitioner is that according to him he believes that DSP Ram Chandra exonerated him and since he had exonerated him the subsequent handing over of the investigation to Inspector Ram Chander Garvan was a reinvestigation and not a further investigation. It is contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. As held in Sidhartha Vashisht (Supra) the accused cannot claim an indefeasible legal right to claim every document of the police file. Even giving an expanded application to the doctrine of disclosure, the Petitioner is neither entitled to these documents, nor is it the stage necessitating production under Section 91 Code of Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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