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2022 Supreme(Online)(Guj) 6882
GUJARAT HIGH COURT
Niral R. Mehta, J
Meghna Chitrang Jariwala – Appellant
Versus
Rajendrakumar A. Seth – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 7596 of 2022
For the Appellants/Petitioners: RJ Goswami
For the Respondents: Pranav Trivedi
An accused cannot ordinarily invoke Section 91 of the CrPC at the pre-charge stage to seek documents that do not exist or have no crucial bearing on the framing of charges, as this would lead to an impermissible mini-trial.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 91 - Production of documents - Application by accused at pre-charge stage - The powers under Section 91 are enabling in nature to ensure the production of necessary or desirable documents for investigation, inquiry, or trial - Accused cannot ordinarily invoke Section 91 at the stage of framing of charge - Court may exercise this power only if satisfied that material available with the investigator, not made part of the chargesheet, has a crucial bearing on the issue of framing of charge (Paras 11, 12, 13).
(B) Constitution of India - Article 227 - Supervisory jurisdiction - Interference with orders of lower courts - No interference is warranted if the courts below have applied their minds judiciously and the order does not suffer from any infirmities (Para 10, 15).
Facts of the case:
A private complaint was filed against the petitioner for alleged violation of the Pre-Conception and Prenatal Diagnostics Techniques (Regulation and Prevention of Misuse) Act, 1994. During the pre-charge evidence, the complainant testified that while a visit and inspection occurred on 19.11.2013, no such inspection or examination of records took place on 18.11.2013. The petitioner subsequently filed an application under Section 91 of Cr.P.C. seeking documents related to the 18.11.2013 visit. Both the Judicial Magistrate First Class and the Sessions Court rejected the application.
Findings of Court:
The court found that the entire complaint was based on the inspection of 19.11.2013. Since it was admitted on oath that no inspection occurred on 18.11.2013, no documents for that date were prepared or relied upon, making the application based on a misconception of fact. Furthermore, seeking such documents at the pre-charge stage would amount to a roving inquiry and a mini-trial.
Issues: Whether the petitioner was entitled to the production of documents for a date on which no inspection occurred and whether Section 91 of Cr.P.C. can be routinely invoked by an accused at the pre-charge stage.
Ratio Decidendi: The court ruled that Section 91 cannot be used to conduct a mini-trial at the pre-charge stage; it can only be exercised if the requested material has a crucial bearing on the framing of charges and is actually available with the investigator.
Result: Petition dismissed.
ORAL ORDER
1. By way of this Special Criminal Application, the petitioner-original accused has approached this Court for the following reliefs;
“(A) To allow this application;
(B) To call for the record and proceedings of Criminal case No. 59632 of 2015 from Judicial Magistrate First Class (2nd Court), Surat and be pleased to quash and set aside the judgment and order dated 23.08.2021 passed below Ex.58 and be pleased to allow application at Ex.58 filed by the petitioner under Section 91 of the Code of Criminal Procedure and to quash and set aside the judgment and order dated 22.03.2022 passed in Criminal Revision Application No.374 of 2021 by the Hon'ble 12th Additional Sessions Judge, Surat rejecting the revision application filed by the petitioner;
(C) Pending, admission, final hearing and disposal of this application to stay further proceedings of criminal case no. 59632/2015 pending before the Hon'ble Judicial Magistrate First Class (2nd Court), Surat;
(D) To pass any other and further orders as may be deemed fit and proper.”
2. The facts which are emerging from the record are as under;
That a private complaint came to be filed against the petitioner for the alleged offence of violation of the provisions of Pre-Conception and Prenatal Diagnostics Techniques (Regulation and Prevention of Misuse) Act, 1994 before the learned J.M.F.C. (2nd Court), Surat, which has been registered as Criminal Case No.59632 of 2015. Pursuant to the said complaint, the petitioner appeared before the concerned trial Court and thereafter, since the case is warrant triable, the complainant led his pre-charge evidence by examining the witnesses, including the witness-complainant Dr. Rajendrakumar A. Sheth at Exh.11. The said witness was also cross-examined by the present petitioner. In the cross-examination, the complainant appears to have stated in no uncertain terms that he visited the Clinic of the petitioner on 18.11.2013 with his superiors; however, they had not examined any records and even no notice was issued on 18.11.2013. However, in his cross-examination, the complainant further stated that on 19.11.2013, they visited the Clinic of the petitioner and for which, the diary was maintained. The complainant, in his cross-examination, has showed willingness to produce the said diary before the Court.
3. After such examination was over on 02.01.2017, it appears that the present petitioner had submitted an application (Exh.58) under Section 91 of Cr.P.C. to the concerned Magistrate wherein, the petitioner had requested the Court to direct the complainant to produce necessary documents relating to the search and inspection carried out at the Clinic of the petitioner on 18.11.2013. The said application came up for hearing before the learned J.M.F.C. (2nd Court), Surat, who, vide its order dated 23.08.2021, rejected the said application.
4. Being aggrieved by the aforesaid, the petitioner approached the Court of learned 12th Addl. Sessions Judge, Surat by way of Criminal Revision Application No.374 of 2021, which came to be rejected vide order dated 22.03.2022.
5. Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of the present petition under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C.
6. I have heard learned advocate Mr. R.J. Goswami for the petitioner and learned APP Mr. Pranav Trivedi for the respondent-State of Gujarat. Learned advocate Mr. Goswami submitted that the orders passed by the Courts below are against the provisions of Section 91 of Cr.P.C. and thereby, not tenable in the eyes of law. Learned advocate Mr. Goswami submitted that the order passed by the Courts below, more particularly, the order passed by the learned Magistrate, is a non-speaking order. Learned advocate Mr. Goswami further submitted that the order passed by the learned Sessions Court is under misconception of law and against the purport of Section 91 of Cr.P.C. Learned advocate Mr. G
