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2019 Supreme(Ori) 195
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Trilochan Khora - Appellant
Versus
State of Orissa - Respondent
Criminal Miscellaneous Case No. 2670 of 2018
Decided On : 17-06-2019
Advocate Appeared:
Manoranjan Padhy, Adv., Prem Kumar Patnaik, Adv.
The accused cannot insist on the prosecuting agency to collect materials to prove the plea of alibi, and the accused's entitlement to seek an order under Section 91 would ordinarily not arise until the stage of defense.
Headnote:
Alibi - Criminal Procedure - Code of Criminal Procedure - Section 91, Section 173, Section 227, N.D.P.S. Act - [Section 91 of Cr.P.C., Section 173 of Cr.P.C., Section 227 of Cr.P.C., Section 20(b)(ii)(C)/29 of the N.D.P.S. Act] - The court discussed the provisions of Section 91 of Cr.P.C. and its application in the context of the accused's plea of alibi. It referenced the necessity and desirability of documents for the purpose of investigation, inquiry, trial, or other proceedings under the Code, and highlighted that the accused cannot insist on the prosecuting agency to collect materials to prove the plea of alibi. The court also emphasized that the accused's entitlement to seek an order under Section 91 would ordinarily not arise until the stage of defense, and that the accused cannot invoke Section 91 to seek production of any document to show his innocence at the stage of framing of a charge. Additionally, the court referred to the provisions of the N.D.P.S. Act related to the case.
Fact of the Case:
The petitioner filed a petition under Section 482 of the Code of Criminal Procedure to quash an order rejecting the petitioner's plea to direct the investigating officer to consider C.C.T.V. footage for the defense of the accused in a case related to the possession of ganja.
Finding of the Court:
The court found that the accused cannot insist on the prosecuting agency to collect materials to prove the plea of alibi and that the accused's entitlement to seek an order under Section 91 would ordinarily not arise until the stage of defense. The court also noted that the investigation had been completed and charge sheet submitted, and there was no illegality or impropriety in the impugned order.
Issues: The issues involved the application of Section 91 of Cr.P.C. in the context of the accused's plea of alibi and the rejection of the petitioner's plea to direct the investigating officer to consider C.C.T.V. footage for the defense of the accused.
Ratio Decidendi: The accused cannot insist on the prosecuting agency to collect materials to prove the plea of alibi, and the accused's entitlement to seek an order under Section 91 would ordinarily not arise until the stage of defense. Additionally, the accused cannot invoke Section 91 to seek production of any document to show his innocence at the stage of framing of a charge.
Final Decision: The court dismissed the CRLMC application, finding it devoid of merits.
JUDGMENT :
S. K. SAHOO, J.
1. This is an application under section 482 of the Code of Criminal Procedure filed by the petitioner Trilochan Khora to quash the impugned order dated 20.08.2018 passed by the learned Special Judge, Koraput, Jeypore in T.R. Case No.16 of 2018 in which the petition filed by the petitioner under section 91 of Cr.P.C. praying to direct the investigating officer for consideration of the C.C.T.V. footage installed in front of the house of the petitioner was rejected on the ground that the document or thing necessary or desirable for the defence of the accused cannot be entertained at the stage of instigation.
2. As it appears Boriguma P.S. Case No.68 of 2018 was instituted on 07.04.2018 on the first information report submitted by Karunakar Dharua, Sub-Inspector of Police of Boriguma police station on the accusation that on that day at about 5.30 a.m. the petitioner along with co-accused persons were carrying commercial quantity of ganja to the tune of 927.400 kgs. in a truck bearing registration no. CG-04-JB-4699 on NH 26 road near Petrol Pump, Jayantigiri which was seized. The petitioner was arrested on the spot. On such F.I.R., a case under sections 20(b)(ii)(C)/29 of the N.D.P.S. Act was registered.
3. During investigation of the case, a petition was filed by the petitioner under section 91 of Cr.P.C. for a direction to the investigating officer to consider the C.C.T.V. footage installed in front of the house of the petitioner. It is stated in the petition that on the date of occurrence i.e. on 07.04.2018 the petitioner was in his house till 8.30 a.m. which would be clear from the close circuit camera which was installed in front of the house of the petitioner situated in Down Street (Harijan Street) of village Umuri and therefore, the case of the prosecution that at about 5.30 a.m. on that day the petitioner was carrying contraband ganja in a truck and arrested at the spot is a fabricated story.
4. On such petition, the prosecution filed its objection and the learned Special Judge, Koraput, Jeypore considering the submission made by the learned counsel for the respective parties and taking into account the provision under section 91 of Cr.P.C. and the ratio laid down by the Hon'ble Supreme Court in the case of State of Orissa -Vrs.- Debendra Nath Padhi, (2005) 30 OCR 177, rejected the petition. In the said decision, the Hon'ble Court held as follows:-
"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 produced in terms of section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to sh
