IMPORTANT POINT
The necessity of documents for trial must be clearly stated in the application; failure to do so justifies dismissal under Sections 233(3) and 91 of Cr.P.C.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short the 'BNSS') by the accused in SC 1154/2023 on the files of the Special Court-II under the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) Manjeri, aggrieved by Annexure-3 order whereby an application under Section 91 of the Code of Criminal Procedure, 1973 (for short the Cr.P.C.) filed by the accused seeking production of personal diary/note book in KPF 59 pertaining to PW2 Razia Bengalath, Sub Inspector of Police, Malappuram Vanitha Police Station during the relevant time, was dismissed by the Special Court.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail.

3. According to the learned counsel for the petitioner, as per Section 233(3) of Cr.P.C. if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

4. It is submitted that in the order impugned nothing was stated to the effect that the petition was made for the purpose of vexation or delay or for defeating the ends of justice. According to the learned counsel for the petitioner, since production of the above documents is absolutely necessary to prove the defence case, Annexue-A3 is liable to be interfered and the petition may be allowed.

5. While assailing Annexure-A3 order it is pointed out by the learned counsel for the petitioner that even though the exact point to be proved by production of personal diary/notebook in KPF 59 is not specified in the petition, the intent behind filing of this petition is to prove that the 1st statement given by the victim was suppressed by the investigating officer, PW12 who conducted investigation partially.

6. Opposing the contention, the learned Public Prosecutor would submit that what is the necessity to produce the documents was not specifically stated in the petition and production of documents was sought without clarity. Therefore, the learned Special Judge dismissed the application holding that the documents called for were not necessary for the trial of the case and in such a case, Annexure-3 order doesn't require any interference.

7. In this connection it is relevant to refer Section 233(3) as well as Section 91 of Cr.P.C. The same read are under:

Sec. 233: Entering upon defence:

(1) & (2) omitted

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

Sec. 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) & (3) omitted

8. As per Section 233 (3) Cr.P.C. as pointed out by the learned counsel for the petitioner, if the accused applies for issue of any process compelling the attendance of any witness or the production of any document, the Judge shall issue process unless he considers, for the reasons to be recorded, that such application should be refused on the ground that it is made