The accused cannot invoke Section 91 of Cr.P.C. to summon evidence for defense; such requests must be made under Section 233 when entering defense.

ORDER

Dated this the 11^th day of February, 2025

The petitioner is the sole accused in S.C.No.936/2024 of the Special Court (POCSO) Kunnamkulam. Petitioner is aggrieved by Annexure-A5 Order, which rejected petitioner’s application under Section 91 Cr.P.C . to produce certain CCTV footage inside the Police Station and the General Diary entries, in order to substantiate the presence and movements of the accused in the Police Station.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

3. Learned counsel for the petitioner submits that, the petitioner has a definite case, that he was illegally detained from 4.00 p.m. on 31.03.2024, contrary to the prosecution claim of arrest at 7 p.m., on 01.04.2024. It is the further case of the petitioner that the SHO concerned has personal acquaintance with the defacto complainant’s mother. According to the learned counsel, the illegal detention is crucial to the petitioner’s defense. In order to establish the above referred contention of the petitioner, the petitioner seeks the CCTV footage and the General Diary entries to be produced before the Court, by virtue of Annexure A4 application. The trial Court illegally dismissed the said application, by virtue of Ext.A5 Order, is the contention urged.

4. Learned counsel would submit that the power under Section 91 Cr.P.C . is essentially a power vested with the Court. However, the reasoning given by the trial Court that Section 91 Cr.P.C . cannot be pressed into service, to summon a document, which does not form part of the Court charge, is completely erroneous. In substantiation of the said point, learned counsel would rely upon the judgment of the Hon’ble Supreme Court in Nitya Dharmananda @ K. Lenin and another vs. Gopal Sheelum Reddy Aka Nithya Bhaktananda and another [ 2018(1) KHC 290 ]. Specific reliance is placed upon the observations contained in paragraph no.9 of the judgment, which holds that, if there is any material of sterling quality, which has been withheld by the investigator/prosecutor, the Court is not debarred from summoning or relying upon such evidence, even if the same does not form part of the charge sheet. On such premise, the petitioner seeks Ext.P5 Order to be set aside.

5. The above arguments were seriously refuted by the learned Public Prosecutor. It was pointed out that, the petitioner/accused, during the course of prosecution evidence, cannot summon any document. Cr.P.C . envisages such an opportunity to the petitioner in terms of Section 233 , is the submission made by the learned Public Prosecutor.

6. Having heard the learned counsel appearing for the respective parties, this Court finds considerable merit in the submissions made by the learned Public Prosecutor. Primarily, this Court fails to understand as to how the defense case is going to be advanced, if it is shown that the petitioner/accused was arrested at a time prior to the time shown in the arrest memo. It is one thing to say that, such a conduct cannot be condoned, from the stand point of the investigating officer. However, that, by itself, cannot advance the defense to be projected by the accused/petitioner, in answer to the charge for the offences under POCSO Act, unless, of course, he canvass a case that the whole case is totally false foisted by the SHO, hand in glove with the defacto complainant’s mother. These are matters to be thrashed out in evidence. At any rate, it is a document/evidence, which requires to be produced in order to advance the defense case. As rightly pointed out by the learned Public Prosecutor, the appropriate stage, which the petitioner can take recourse to such a remedy, is when the petitioner/accused is called upon to enter upon his defence in terms of Section 233 of the Code. Section 91 is essentially a power vested with the Court or the officer in charge of the police station to issue summons for the production of a document or other thing, which the Court or police office