Order on Board

23.01.2023

1. This Petition has been filed under Section 482 Cr.P.C against the order dated 15.11.2021 passed by the JMFC, Korba in Criminal Case No.3293/2019, whereby the application filed by the Petitioners under Section 91 Cr.P.C at the stage of framing of charge has been dismissed.

2. Shri Kotecha, learned Counsel for the Petitioners submits that the State has filed the charge sheet under Section 341, 294, 506 and 427/34 IPC against the Petitioners/accused. He further submits that in para-1 of the Petition, inadvertently, it has been mentioned that the matter is fixed for evidence though the matter is fixed for argument before the charge and at that stage, the Petitioners have moved an application under Section 91 Cr.P.C seeking the location of the complainant which is a very crucial piece of information and even they tried to take out the location of the complainant through RTI but could not get satisfactory response from the concerned authorities as at the time of incident, the complainant was present elsewhere and a false and fabricated story has been cooked up, therefore, the trial Court has wrongly dismissed the said application. He placed reliance on the judgment delivered in the matter of Varsha Garg vs. The State of Madhya Pradesh & Ors in Criminal Appeal No.1021/2022 dated 08.08.2022 and prays for intervention invoking the powers enumerated under Section 482 Cr.P.C.

3. On the other hand, Smt Asha supports the order impugned.

4. Heard learned Counsel for the parties and perused the documents annexed herewith with utmost circumspection.

5. In the instant case, the application under Section 91 Cr.P.C was moved at the stage of framing of charge which according to the Petitioners, if produced, would help them in rebutting the charges levelled against them. It is well settled that at the stage of framing of charge, the Court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, the trial Court is required to consider only police report referred to under Section 173 Cr.P.C and the documents sent with. The only right the accused has at that stage is of being heard and nothing beyond that. Taking into consideration the averments made in the application moved under Section 91 Cr.P.C as well as the grounds taken in the Petition before this Court, I am of the considered view that while framing of the charge, production of such documents is not permissible as this right is not acknowledged in the Cr.P.C. In the matter of State of Orissa vs. Debendra Nath Padhi reported in (2005) 1 SCC 568, it has been held that the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence and para-25, which is relevant, reads thus:-

“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 desirabilit