The court has the discretion to summon documents under Section 91 Cr.P.C. even at the stage of framing charges, if the documents are necessary and desirable to determine the sustainability of the case and prevent an exercise in futility.

JUDGMENT

Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the impugned order dated 04.09.2018 passed by learned Special Judge, Special Court, Prevention of Children from Sexual Offence Act, 2012 and Children Rights Protection Commission Act, 2005 No.2, Udaipur in Special Sessions Case NO.236/2018 titled as State of Rajasthan Vs. Shanker & Ors. whereby the learned trial court has declined to summon the documents pertaining to admission of the prosecutrix from the concerned government school and accordingly, rejected the application under Section 91 of the Cr.P.C. filed by the petitioner.

2. The trial for the offences under Sections 363, 376 and 120- B IPC read with Section 3/4 & 17 of the POCSO Act is going on against the petitioner.

3. The limited question to be adjudicated by this Court in the present case is that the accused - petitioner moved an application under Section 91 Cr.P.C. seeking to take on record the document pertaining the date of birth of the prosecutrix at the time of her initial admission in the school in which her date of birth was mentioned as 15.07.1997, and thus, she would have been 18 years of age at the time of the alleged incident.

4. Counsel for the petitioner and counsel for the respondent both have relied upon the Full Bench judgment of the Hon'ble Apex Court in the matter of State of Orissa Vs. Debendra Nath Padhi , (2005) AIR SC 359 / 2005 1 SCC 568.

5. Counsel for the petitioner has relied upon para 26, 27 and 28 of the said judgment which reads as under :

"26. Reliance on behalf of the accused was placed on some observations made in the case of Om Prakash Sharma vs. CBI, Delhi , (2000) 5 SCC 679. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra). The contentions based on Satish Mehra's case have been noticed in para 4 as under:

"The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. , (1996) 9 SCC 766 laying emphasis on the fact the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State , (1999) 49 DRJ 202. Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings.

27. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result i