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JAMMU AND KASHMIR HIGH COURT
Sanjeev Kumar, J.
Amit Kumar son of Ram Kumar – Petitioner
versus
UT of Jammu and Kashmir Thr. SHO Police Station ANTF – Respondent
CRM (M) No.28 of 2024
Decided on 7.2.2024
(A) Criminal Procedure Code, 1973 – Section 91 – Summons to produce document or other thing – Section 91 does not confer any right on accused to produce document in his possession to prove his defence – Section 91 pre-supposes that when document is not produced, process may be initiated to compel production thereof – Section 91 is wide enough to enable Court to seek production of any document or other thing which is necessary or desirable for the purposes of any investigation, enquiry, trial or other proceedings under the Code – Width of powers conferred upon Court or any officer in-charge of a Police Station under Section 91 Cr.P.C. is unlimited, but there are inbuilt inherent limitations as to stage or point of time of its exercise, commensurate with nature of proceedings as also compulsions of necessity and desirability, to fulfill task or achieve the object. (Para 6)
(B) Criminal Procedure Code, 1973 – Section 91 – Summons to produce document or other thing – Entitlement of accused to seek order under Section 91 Cr.P.C. would ordinarily not come till stage of defence – Necessity and desirability of documents sought to be produced for the purpose of investigation, enquiry, trial or other proceedings, is to be examined considering stage when such prayer for summoning and production of document or other material is made – In no case, Section 91 can be invoked as a matter of right to seek production of document, whether in possession of accused or some other person, which may be necessary to prove defence of accused – At the stage of framing of charge, Court is only supposed to restrict its consideration to charge-sheet and material produced with it by prosecution – Defence has no right to invoke Section 91 Cr.P.C. to prove his innocence – Such documents, if necessary and desirable, can be produced by accused or by some other person at asking of accused at the time of leading his defence – However, if Court is satisfied that there is a document or material of sterling quality which has been withheld by investigator or prosecutor, it can summon and rely upon same even if such document is not a part of charge-sheet – Application under Section 91 Cr.P.C. at instance of accused would lie even at stage of framing of charge if accused makes out a case that there is a document or material of sterling quality lying with I.O. (Paras 8 and 12)
Result: Petition dismissed.
JUDGMENT
The petitioner is facing criminal trial in FIR No.14/22 registered under Sections 8/20/29 of NDPS Act in the Court of learned Second Additional Sessions Judge, Jammu [‘trial Court’]. The matter is yet to be taken up by the trial Court for framing of charge.
2. With a view to contest framing of charge, an application under Section 91 Cr.PC came to be filed by the petitioner before the trial Court to call for the Tower location (CDR) of Airtel Mobile No. 9034909052 and Jio Mobile No. 8708236962 belonging to the petitioner and also the Tower Location (CDR) of two mobile numbers of co-accused, namely Ombir. A request was also made to call for the record of toll tax paid through the Fastag affixed to the Hyundai Creta car of the petitioner bearing Registration No. HR29AV-3483 at Ban Toll Plaza, Nagrota on 14.10.2022 along with CCTV footage of 14.10.2022. The application was filed on the ground that the petitioner and co-accused are suffering incarceration for the last more than ten months for no fault of their. The petitioner is a business man who deals in sale and purchase of apples and in connection thereof, he along with his friend were coming back from Kashmir on 14.10.2022. The petitioner, who was travelling in the Hyundai Creta Car was stopped by some persons in civil clothes immediately after they crossed Nashri Tunnel. On enquiry, it was found that the men in civil clothes were members of a team of Police from Police Station ANTF Gandhi Nagar Jammu. It was alleged that the ANTF team took the petitioner and co-accused to the office of ANTF Gandhi Nagar, Jammu. The petitioner claims that they went to Ban Toll Plaza and even paid toll tax through fastag affixed on the wind screen of the vehicle. It was also alleged in the application that the ANTF Team switched off the phones of the petitioner and the co-accused before they were taken out of the Police Station ANTF. The Hyundai Creta Car of the petitioner was taken by the ANTF people to a place on bypass Sidhra, Narwal, also known as Bagh-e-Bahu Morh Jammu where they handcuffed the petitioner and the co-accused. The ANTF team which had fabricated a cavity inside the fuel tank of Creta car, took out some stuff and informed the petitioner that it was charas. The petitioner along with co-accused were arrested and a false case under Sections 8/20/29 NDPS act was slapped upon them. It is submitted that the documents which the petitioner is asking for would show to the Court that the entire drama leading to recovery and arrest of the petitioner and co-accused was stage managed by the ANTF team of Gandhi Nagar, Jammu. The tower location would indicate how the petitioner and the co-accused moved from Ban Toll Plaza to Gandhi Nagar and then to Bagh-e-Bahu Morh on Sidhra road, Narwal.
3. The application was resisted by the prosecution. In its objections, learned APP submitted that the challan which is subjudice in the Trial Court is fixed for framing of charge on 17.10.2023. The petitioner is a kingpin of a gang of narcotic smugglers who smuggle narcotics from Kashmir to other parts of the country and has established his network. The offence committed by the petitioner is serious, heinous and non-bailable and carries rigorous imprisonment, ranging from 10 to 20 years. It was also submitted that the required CDR and other documents which had already been procured by the Investigating Officer [‘I.O’] are annexed with the challan. That apart, the CCTV footage, tower locations and toll tax data are being stored for a specified period of time and, thereafter, get deleted/erased automatically.
4. The application was considered by the trial Court in the light of rival submissions made by learned counsel appearing for the petitioner and the prosecution and the case law on the point. The trial Court concluded that at the time of framing of charge, an accused does not have a right to produce any material or documents to contest framing of charge, for, the charge is required to be framed
(1) Section 91 Cr.P.C. does not confer any right on accused to produce document in his possession to prove his defence.(2) Application under Section 91 Cr.P.C. at instance of accused would lie even a....
At the stage of framing of charge, the court can only consider material produced by the prosecution. The accused cannot invoke Section 91 to prove innocence, unless material of sterling quality has b....
The accused cannot invoke Section 91 CrPC to produce documents for defense at the charge framing stage; only prosecution materials are considered.
The main legal point established in the judgment is that accused persons are entitled to invoke Section 91 CrPC after the filing of the charge-sheet, and the trial Court has the jurisdiction to direc....
At the discharge stage, an accused cannot seek production of documents under Section 91 of Cr.P.C, as the right to produce evidence arises only during the trial phase.
The main legal point established in the judgment is that the accused's entitlement to seek production of documents under Sec. 91 would ordinarily not come till the stage of defense, and the expressio....
The accused's right to a fair trial, the obligation of the prosecution to make fair disclosure, and the accused's entitlement to relevant documents collected during the investigation were central leg....
Point of law:Discharge petition - 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 in....
The accused cannot be compelled to produce incriminatory documents based on his knowledge, as established by the interpretation of Section 94 of Cr.P.C. and relevant case laws.
The accused cannot invoke Section 91 of the Cr.P.C. at the charge framing stage, as the necessity of documents for defense is not relevant at that point.
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