The court has the discretion to decide whether to summon a document or not under Section 91 of the Code of Criminal Procedure, 1973. This discretion is to be exercised judicially, and the court must be satisfied that the production of the document is necessary or desirable for the purposes of the trial.

R.L. Khurana, J.—The petitioner, hereinafter referred to as the accused, has directed the present petition under Sections 397, 401 and 482 of the Code of Criminal Procedure, 1973 (for short: the Code) against the order dated 8.12.1997 of the learned Chief Judicial Magistrate, Shimla, whereby his application made under Sections 91 and 94 of the code for seizure and production of the record was dismissed.

2. Briefly stated, the facts of the case leading to the present petition are these. On the basis of the complaint filed by the respondent, hereinafter referred to as the complaint, the accused is facing trial for the offence under Section 500, Indian Penal Code. The complainant has averred that the accused, during the course of his election compaign, when the accused was contesting the election to the Lok Sabha from Kangra constituency, had made derogatory public statements on different occasions which were published in various newspapers. According to the news item published in Indian Express in its issue dated 25.2.1996, the accused is reported to have stated that the amount of commission paid on raising of loans by the State Government had been deposited in foreign bank accounts of the relatives of certain influential persons of the State. Similarly in the newspaper Janata dated 20.4.1996, the accused is reported to have made a statement making direct allegations against the complainant to the effect that in obtaining the loans by the State during the year 1994-95, the complainant was directly involved in taking the "Dalali" of rupees three crores.

3. On the basis of the above news items, the complainant is prosecuting the accused for the offence under Section 500, Indian Penal Code. It is averred that the allegations made by the accused are false to his own knowledge and the same have been made with the intention to harm the reputation of the complainant in the eyes of the general public.

4. On the accused having put in appearance in response to the process issued to him under Section 204 of the Code, he was I served with a notice of accusation as required under Section 251 of the Code. The accused did not plead guilty and has claimed to be tried.

5. While the case was pending for evidence of the complainant, an application was made by the accused on 23.4.1997 under Sections 91 and 94 of the Code for summoning of the record as detailed in para 7 of the application and to take such record into possession and custody of the Court for the purpose of cross -examination of the complainant and his witnesses. Such application was allowed exparte by the learned Magistrate on the same day, that is, 23.4.1997.

6. The complainant thereafter on 15.5.1997 made an application for recalling of the order dated 23.4.1997 allowing the summoning of the record under Section 91 of the Code. The learned Magistrate after hearing the parties vide his order dated 2.8.1997 recalled his earlier order dated 23.4.1997 and it was directed that the application made by the accused under Sections 91 and 94 of the Code "shall be decided afresh on merits after affording to both the parties an opportunity of being heard."

7. The order dated 2.8.1997 was assailed by the accused by way of a revision petition being Cr.R.No. 79 of 1997 before this Court. Such revision petition was dismissed on 1.10.1997 as being not maintainable having been filed against an interlocutory order.

8. The learned Magistrate after hearing the parties vide his impugned order dated 8.12.1997 has dismissed the application made by the accused under Sections 91 and 94 of the Code and has thus refused to summon the record as detailed in para-7 of the application. The accused has thus approached this Court by way of the present revision petition. The accused has averred in para-7 of his application as under:— “7. That it is, therefore, desirable in the interest of justice to summon the following record from the persons, shown and mentioned in the following paras and seize the same and take