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.

ORDER :

1. The petitioner, accused in Vigilance Crime No. 3/2023/SIU-II, challenges the order dated 21.10.2023 passed by the Enquiry Commissioner and Special Judge, Thiruvananthapuram in C.M.P. No. 1483 of 2023. The petitioner faces charge under Section 7(a) of the PC Act, 1983 (Amendment 2018).

2. The prosecution case is as follows:

The petitioner, while, working as Secretary, Vellanadu Grama Panchayat, demanded a sum of Rs.10,000/- from One Aswathy wife of Baiju for issuing pass for removing soil from her property. The de facto complainant lodged a statement on 23.08.2023 before the Vigilance and Anti-Corruption Bureau. The Vigilance laid a trap. The de facto complainant handed over the trap money to the petitioner. He received the same, but he could not be arrested at the spot. He fled away from the scene on seeing the vigilance team. The Vigilance team chased him in a car and arrested him from Kattakkada Junction, a place which is 18 kms away from the spot where the trap money was handed over. The phenolphthalein test conducted turned negative.

3. The case of the petitioner is that the entire story narrated by the Vigilance is against the truth. According to the petitioner, he never demanded and accepted the money. The petitioner pleads that what actually transpired at the scene of occurrence could be ascertained by watching the CC TV footages available in the nearby shop rooms.

4. Therefore, the petitioner filed application before the Court below under Section 91 Cr.P.C. to issue summons to the proprietors of four nearby shop rooms, cited by him to produce the hard disk of CC TVs. The Trial Court dismissed the application holding that the petitioner/accused has no right to make an application under Section 91 and pray for production of documents at this stage.

5. The said order is under challenge in this Crl.M.C.

6. The learned counsel for the petitioner submits that the preservation of CCTV footages is highly required to establish his defence during the trial. The learned Special Government Pleader (Vigilance) submits that the petitioner cannot invoke the provisions of Section 91 Cr.P.C. at this stage. The learned counsel for the petitioner relied on Nitya Dharamananda v. Gopal Sheelum Reddy, 2018 (2) SCC 93 and Gokul Raj v. State of Kerala, 2021 (4) KHC 143 in support of his contentions. The learned Special Government Pleader relied on State of Orissa v. Debendra Nath Padhi, 2005 (1) SCC 568 in support of his contentions.

7. It is profitable to extract Section 91 of Cr.P.C. which reads thus:

“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).

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

8. The powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer-in-charge of a police station concerned to enforce and ensure the production of any document or other things necessary or desirable for the purpose of any investigation, enquiry, trial or other proceedings und