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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
V. Sulochana - Appellant
Versus
State rep. by The Inspector of Police, CBCID Thiruvallur - Respondent
Crl.O.P. No. 555 of 2021 & Crl.MP. No. 339 of 2021
Decided On : 11-02-2021
Indian Penal Code, 1860 – Section 120B, 182, 201, 409, 424, 411, 454, 380, 381, 477A r/w 34 - Criminal Procedural Code, 1973 - Section 482, 172, 91 - Police Act - Section 44 - Criminal Original Petition – Criminal Conspiracy - Dishonest or fraudulent removal or concealment of property - Dishonestly receiving stolen property - Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment - Theft in dwelling house, etc - Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security - Petitioner has filed an application under Section 91 of Cr.P.C. seeking for production of following documents – Held, Court below has given a finding to effect that stage has not come for petitioner to seek for GD extract - Court below lost sight of fact that an effective defense in fact starts even at time when witnesses are cross examined on side of accused - An accused can defend himself/herself effectively, both by cross-examining prosecution witnesses as well as by independently examining witnesses on side of defence - Therefore, even at time of examination of prosecution witnesses, an application can be filed under section 91 of Cr.P.C. for furnishing or calling for documents to effectively defend prosecution case - Petitioner will be entitled to seek for GD extract even at stage of cross examination of prosecution witnesses - Only test to be applied while considering an application under Section 91 of Cr.P.C, is to see if documents that are sought to be summoned has any relevance or it is necessary for accused to defend himself effectively - In other words, main ingredient of Section 91 of Cr.P.C. is necessity and desirability - Criminal Original Petition is allowed.
JUDGMENT :
Prayer: Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, to call for the records in Crl.MP.No.3271 of 2020 in CC.No.126 of 2012 on the file of the learned Judicial Magistrate-I, Thiruvallur and set aside the order of the learned Judicial Magistrate-I, Thiruvallur dated 14.12.2020 in Crl.MP.No.3271 of 2020 in CC.No.126 of 2012.
1. This petition has been filed challenging the order passed by the Court below dismissing the application filed by the petitioner under Section 91 of Cr.P.C. wherein the petitioner had sought for the production of certain documents in order to effectively defend herself in the case pending against her in CC.No.126 of 2012.
2. The petitioner, who has been arrayed as Al, is facing trial before the Court below for the offences under Section 120B, 182, 201, 409, 424, 411, 454, 380, 477A of IPC read with 34 IPC. The prosecution has examined 36 witnesses and the case is now at the stage of cross examination of PW1. During this stage, the petitioner has filed an application under Section 91 of Cr.P.C. seeking for the production of the following documents:
2. The Inspector of Police, Tiruvallur Town Police Station to cause the production of the General Diary of the Station for the dates 16.03.2009, 22.03.2009, 18.06.2009, 02.07.2009 & 06.10.2009.
3. The Inspector of Police, CBCID to cause the production of the General Diary of the General Diary of the Station dated 22.09.2009, 25.10.2009, 06.11.2009, 20.05.2010, 21.05.2010, 03.11.2020 and 28.01.2011.
3. The Court below dismissed the application filed by the petitioner. Aggrieved by the same, the present petition has been filed before this Court.
4. The learned counsel for the petitioner submitted that departmental proceedings were initiated against PW1 by this Court and she was a Judicial Officer at the relevant point of time. The learned counsel further submitted that the enquiry conducted against PW1 and action taken against her by this Court has a lot of relevance for the petitioner to defend herself effectively in this case. The learned counsel further submitted that the general diary maintained by the Tiruvallur Town Police station and CBCID on the relevant dates, also has a lot of significance to prove her innocence. The learned counsel submitted that the petitioner is entitled for the copy of the general diary on the relevant dates mentioned in the application. To substantiate his submissions, the learned counsel relied upon the judgment of this Court in P. Kalaiselvam Vs. State rep. By the Inspector of Police, Melapalayam Police Station, Tirunelveli District reported in 2019 (2) LWCrl. 161. The learned counsel submitted that the Division Bench of this Court had over ruled the earlier judgment of this Court in Haji Mohammed and others Vs. the State rep. By the Inspector of Police, Koradacheri Police Station, Tiruvarur District reported in 2018 (2) IW Crl. 853 wherein this Court has held that general diary also falls within the scope of Section 172 of Cr.P.C. The learned counsel submitted that in view of the Divison Bench judgment of this Court, the petitioner is entitled for call for general diary extracts for the relevant dates mentioned in the application.
5. The learned counsel for the petitioner concluded his arguments by submitting that the Court below went wrong in finding that an application under Section 91 of Cr.P.C. cannot be filed at the stage at which the prosecution witnesses are examined.
6. The learned Addition Public Prosecutor appearing on behalf of the respondent Police, on instructions, submitted that insofar as the general diary extract that is sought for from Tiruvallur Town Police Station is concerned, the same has been destroyed by virtue of the proceedings of the Superintendent of Police and they are no more availa
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