The court has the power to summon documents not part of the charge sheet under Section 91 Cr. P.C. during the trial if it is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor.

JUDGMENT

Pushpendra Singh Bhati, J. - The petitioners have preferred this misc. petition under Section 482 of Cr. P.C. for the following prayer :

"It is, therefore, most humbly and respectfully prayed on behalf of petitioner that this misc. petition may kindly be allowed, order dated 25.10.2018 passed by learned ACJM No.2, Sri Ganganagar may kindly be quashed and set aside and the application filed by petitioners under Section 91 Cr. P.C., may kindly be allowed for the prayers made therein."

2. The factual matrix of the case in brief is that the complainant filed a criminal complaint before the learned ACJM No.2, Sri Ganganagar against the present petitioners for offence under Sections 420, 467, 468, 471 and 120-B IPC, whereupon on the complaint being sent under Section 156(3) Cr. P.C., FIR No.186/2010 came to be registered at P.S. Hindumalkot, District Sri Ganganagar.

3. At the outset, learned Public Prosecutor submits that after investigation charge-sheet has been filed before the competent court on 28.3.2012 for offence under Sections 420, 467, 468, 471, 448 and 120-B IPC.

4. During trial, the petitioners moved an application under Section 91 Cr. P.C., for summoning to produce documents i.e. affidavit dated 20.7.2006 executed by Laxman Ram before the Sub-Registrar, Muklawa, District Sri Ganganagar.

5. Counsel for the petitioners submit that summoning of such document was necessary as FSL of alleged Will dated 10.3.2008 if made with such document, then the FSL Report would be more trustworthy.

6. Counsel for the respondent submits that charge-sheet has already been filed, thus, invoking powers under Section 91 Cr. P.C., would not be appropriate at this stage.

7. In rejoinder, counsel for the petitioners placed reliance upon judgment of Hon'ble Apex Court in Nitya Dharmananda @ K. Lenin & Anr. Vs. Shri Gopal Sheelum Reddy also known as Nithya Bhaktananda & Anr., in Criminal Appeal No.2114/2017, decided on 07.12.2017, which read as follows :

"1. Delay condoned. Leave granted.

2. Signature Not Verified We have heard learned counsel for the State, the Digitally signed by complainant, the accused and the learned amicus, Mr. Siddharth MAHABIR SINGH Date:

2017.12.08 16:55:29 IST Reason:

Luthra, Senior Advocate.

3. The respondent, Gopal Sheelum Reddy alias Nithya Bhaktananda, was charge sheeted for offences, inter alia, under Section 376 of the Indian Penal Code. The respondent approached the High Court with the prayer that the entire material available with the investigator, which was not made part of the chargesheet, ought to be summoned under Section 91 of the Cr.P.C. The High Court, reversing the contrary view of the trial court, allowed the said application.

4. Contention raised on behalf of the appellants is that the view of the High Court is contrary to law laid down by this Court in State of Orissa versus Debendra Nath Padhi , (2005) 1 SCC 568 and reiterated in the subsequent decisions. The defence could not be considered at the stage of framing of charge so as to avoid a mini trial.

5. Learned counsel for the defence, on the other hand, submitted that if the investigator is not fair and the material of sterling quality, though seized during investigation and available with him, is deliberately left out from the charge-sheet, there is no bar for the court to summon the said material.

6. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the charge-sheet, has crucial bearing on the issue of framing of charge.

7. In Debendra Nath Padhi, supra, it was observed:

25. Any document or other thing envisaged under the aforesaid provision