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1993 Supreme(Cal) 79
High Court Of Calcutta
Gitesh Ranjan Bhattacharjee
BROJENDRA NATH KOLEY - Appellant
Versus
STATE - Respondent
CRI. REV. 999 Of 1990
Decided On : 02/24/1993
CHAITANYA CHANDRA MUKHERJI, PRADIP GHOSH
An accused is entitled to apply under section 91, Cr. P. C. for summoning the documents on which he wants to rely even before charges are framed, and the Magistrate is empowered to do so provided that he deems it necessary or desirable.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 91, 173, 207, 227, 228, 233, 238, 239, 240, 243 - PRODUCTION OF DOCUMENTS - RIGHT OF ACCUSED TO DEMAND PRODUCTION OF DOCUMENTS AT THE STAGE OF FRAMING OF CHARGE - SECTION 91, CR. P. C. EMPOWERS THE COURT TO ISSUE SUMMONS FOR PRODUCTION OF ANY DOCUMENT AT ANY STAGE OF INVESTIGATION, INQUIRY OR TRIAL IF THE COURT CONSIDERS THE PRODUCTION OF SUCH DOCUMENT NECESSARY OR DESIRABLE IN THE INTEREST OF JUSTICE - ACCUSED IS ENTITLED TO APPLY UNDER SECTION 91, CR. P. C. FOR SUMMONING THE DOCUMENTS ON WHICH HE WANTS TO RELY EVEN BEFORE CHARGES ARE FRAMED AND THE MAGISTRATE IS EMPOWERED TO DO SO PROVIDED THAT HE DEEMS IT NECESSARY OR DESIRABLE.
Fact of the Case:
The petitioners, accused in a case involving defalcation of funds from a company, sought production of copies of 31 cheques seized by the police during the investigation, which were not supplied to them under section 207 Cr. P. C. as the prosecution did not intend to rely on them at trial.
Finding of the Court:
The court held that the accused were entitled to demand production of the cheques under section 91 Cr. P. C., which empowers the court to issue summons for production of any document at any stage of investigation, inquiry or trial if the court considers the production of such document necessary or desirable in the interest of justice.
Issues: Whether the accused can demand production, inspection or supply of copies of documents seized by the police during the investigation but not supplied to them under section 207 Cr. P. C. on the ground that the prosecution would not rely on those documents at the trial of the case.
Ratio Decidendi: The court reasoned that even though the accused are not entitled to copies of documents that the prosecution does not intend to rely on under sections 173 or 207 Cr. P. C., they can still apply for their production under section 91 Cr. P. C. if they believe the documents are relevant to the question of framing of charge. The court noted that section 91 gives the court wide discretion to order production of documents, and that such production should not be ordered if it is for the purpose of vexation or delay or for defeating the ends of justice.
Final Decision: The court directed the investigating agency to produce the remaining 31 seized cheques for inspection by the accused persons or their lawyers, or to supply them with Xerox copies of the cheques. The court also directed the lower court to ensure implementation of this order.
( 1 ) G. R. Bhattacharjee, J.-The short question that arises for decision in this revisional proceeding is whether at the stage of consideration of framing of charge by the Court the accused can demand production, inspection or supply of copies of documents which were seized by the police during the investigation of the case but copies of which were not supplied to the accused under section 207 Cr. P. C. on the ground that the prosecution would not rely on those documents at the trial of the case. In the present case charge-sheet has been submitted under sections 120b, 199 and 377a I. P. C. The allegation of the prosecution in short is that during a specified period there was withdrawal of a total amount of more than Rs. 4,67,900/from the banks by cheques out of which there was a defalcation of more than Rs. 55,000/- against false vouchers. The two petitioners who along with others are the accused in the case were the Directors of the Company and the allegation is that three Directors were authorised to sign cheques on behalf of the company severally and out of them one is now dead. During investigation police seized 112 cheques out of which copies of 71 cheques were supplied to the accused persons under section 207 Cr. P. C. The accused persons made prayer for supply of copies of the remaining 31 cheques which were seized during investigation. The learned Magistrate refused to give direction for supply of copies of those 31 cheques to the accused persons in view of the plea of the prosecution that the prosecution would not rely on those 31 cheques.
( 2 ) IT is submitted by Mr. Ghosh on behalf of the petitioners that even if it is accepted that strictly speaking under section Cr. P. C. the Magistrate is required to supply to the accused only copies of such documents as the prosecution proposes to rely upon, yet there is neither any express provision nor anything by implication in the Code of Criminal Procedure that could bar inspection or supply of copies of other documents which may be necessary for the accused persons in connection with their defence even at the stage of consideration of the question of framing of charge. In this connection, Mr. Ghosh has also referred to the decision of the Supreme Court in M. M. Mathew v. State of Kerala, IT 1991 (1) SC 464. 1 however find that this aspect of the matter is not required to be considered in this context because there is some express provision in the Criminal Procedure Code which would permit direction even at the stage of framing of charge, for production of document if necessary for a legitimate purpose.
( 3 ) AT the time of submitting charge-sheet the Investigation Officer is required under sub-section (5) of section 173 Cr. P. C. to forward to the Magistrate-" (A)all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation ; (B)the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses". Subsection (6) of section 173 however provides that if the Investigation Officer is of opinion that any part of any such statement as aforesaid is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be. ,ranted to the accused and stating his reasons for making such request. Section 207 provides for supply of copies of police report and other documents to the accused in a case where the proceeding has been instituted on a police report. Under that section the Magistrate is required to furnish to the accused, free of cost, a copy of each of the following : (i)the police report; (ii)the first information report recorded under section 154; (iii) the stateme
