The court's discretion to summon witnesses and produce documents under Section 91 Cr.P.C. must be exercised with caution, considering the necessity and desirability of the evidence in light of the stage of the proceedings and the purpose for which it is sought.

JUDGMENT

ORDER

Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 29.06.2017 passed by learned Upper Sessions and District Judge No.1, Sriganganagar whereby the learned Judge has rejected the revision petition No.CIS - 213/2017 and affirmed the order dated 18.05.2017 passed by learned Special Judge (NI Act Cases) No.1, Sriganganagar whereby he rejected the application filed by the petitioner under Section 91 Cr.P.C., 1973 in Criminal Case No.256/2010.

2. The complainant had filed a complaint under Section 138 Negotiable Instruments Act, 1981 and the allegation was that Rs. 2,00,000/- were borrowed and for discharging the liability, the petitioner gave a cheque bearing No.0045817 dated 23.09.2006 of Rs. 2,00,000/- drawn on Bank of India, Branch Dashmesh Nagar in favour of respondent No.2. Due to dishonouring of cheque, the proceedings were initiated.

3. Learned counsel for the petitioner has stated that the powers under Section 91 Cr.P.C., 1973 were required to be exercised by the learned court below as it was necessary and desirable and there was no other means to call Smt. Narender Kaur for taking complete stock of two cheques. The order of rejection of the trial court dated 18.05.2017 has been challenged.

4. Learned counsel for the petitioner has relied upon the judgment of Sugana Ram @ Sugan Chand @ Sugan Dhaka & Ors. vs. Union of India reported in 2015(1) Cr.L.R. (Raj.)134. The relevant portion of the judgment reads as follows:

"17. Section 91 Cr.P.C., 1973 empowers the Court to summon any document or thing which it deems "necessary or desirable" for the purpose of any inquiry or trial. If an accused requests the Court for summoning of some documents, he or she has to demonstrate before the Court that summoning of those documents is necessary or desirable for just decision of the case. It is for the Court to consider any objection raised by the prosecution about the summoning of those documents and if the court finds that the applicants have failed to demonstrate the necessity or desirability for summoning of the said documents, it should reject the application. While deciding the said request made on behalf of the accused, the court must perform the balancing act between the interest of the individual and of the society.

27. The Hon''ble Supreme Court, after placing reliance on its earlier pronouncement and after taking into consideration the relevant provisions of the Criminal Procedure Code, has held as under:

"25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is ''necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code''. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record