Section 91 of the Code of Criminal Procedure (CrPC) cannot be invoked against an accused person to compel the production of documents, as the term 'person' in the section does not include the accused.

ORDER :

This Criminal Petition is filed challenging the Order dated 02.06.2023 passed in Crl.M.P.No.607 of 2023 in C.C.No.796 of 2017 on the file of the II Additional Judicial Magistrate of First Class, Eluru, whereby petition filed by 1st respondent/complainant under Section 91 CrPC to direct the petitioners/accused to produce before the Court, the original challans pertaining to supply of maize by 1st respondent/complainant, was allowed.

2. Heard the learned counsel for the petitioners/accused and the learned counsel for 1st respondent/complainant. Perused the record.

3. Pursuant to a complaint filed by 1st respondent/complainant, the subject C.C. has been registered against the petitioners/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. It is at the stage of trial. At that stage, 1st respondent/complainant filed the aforesaid petition under Section 91 CrPC seeking a direction to the petitioners/accused to produce the original challans pertaining to supply of maize by 1st respondent/complainant. It is the case of 1st respondent/complainant that photocopies of the said documents were supplied to 1st respondent/complainant and the originals thereof, are with the petitioners/accused, and that the said original challans are necessary to prove his case regarding supply of maize. The petitioners / accused filed counter before the trial Court stating that Section 91 CrPC does not contemplate issuance of summons to the accused person and summons to produce document(s) cannot be issued to the accused person. It is also the case of the petitioners/accused that 1st respondent /complainant is taking contradictory stands viz. earlier he filed a petition vide Crl.M.P.No.3046 of 2022 in the present C.C. to send for, the alleged original documents from the Principal District Court, West Godavari district, lying in O.S.No.10 of 2020, to the Court below, which was allowed by the Court below, and now the present petition is filed seeking a direction to the petitioners/accused to produce the said documents. The trial Court, vide the impugned Order, allowed the petition and directed the petitioners / accused to produce the said delivery challans. Challenging the same, the present Criminal Petition is filed by the petitioners/accused.

4. It is the contention of the learned counsel for the petitioners/accused that Section 91 CrPC has no application to an accused person and the word ‘person’ used in the said Section does not include an accused. He submits that no notice under Section 91 CrPC can be issued to an accused person to produce any document, which is allegedly in his possession, relating to a crime or a criminal case, and therefore, the Court below committed error in allowing the petition. Hence, he prays to set aside the impugned Order.

In support of his contention, he relied on decisions in (a) State of Gujarat v. Shyamlal Mohanlal Choski, Manubhai Motilal Patel ¹1964 LawSuit(SC) 332, and (b) Kadiyala Simhachalam Vijay Kumar v. State of A.P. ²2022 (3) Law Summary 135.

5. On the other hand, it is the contention of the learned counsel for 1st respondent/complainant that the original challans pertaining to supply of maize by 1st respondent /complainant are with the petitioners/accused, and that the said original challans are necessary to prove his case regarding supply of maize, and hence, for effective adjudication of the lis involved in the case, the Court below rightly allowed the petition. It is his contention that the petitioners/accused are in possession of certain documents, which may throw light on the controversy involved, and directing them to produce the same does not amount to t