Gwalior, Dated : 02/05/2022 Shri Sushil Goswami, Counsel for the applicants.

Shri C.P. Singh, Counsel for the State.

This application under Section 482 of CrPC has been filed for quashment of order dated 14.09.2021 passed by 12th Additional Sessions Judge, Gwalior in Sessions Trial No. 461/2019, by which the application filed by the applicants under Section 91 of CrPC has been rejected.

It is submitted by the counsel for the applicant that the police during the investigation collected the material to show that the applicants were not present on the spot and they were on their duty. However, in spite of that, the charge-sheet has been filed and, accordingly, an application under Section 91 of CrPC was filed. The Trial Court by order dated 14.09.2021 had rejected the said application on the ground that the applicants are asking for production of those documents which are not the part of the charge-sheet. The case is being listed for framing of charges from 22.11.2019 and it was held that the application has been filed merely to prolong the proceedings.

It is submitted by the counsel for the applicants that the applicants were not present on the spot at the time of incident and, therefore, in case, if the documents sought by them are called by the Court below, then it would be easier for the Court to arrive at the correct facts. However, it is fairly conceded by the counsel for the applicants that copy of the application filed under Section 91 of CrPC has not been placed on record.

Heard the learned counsel for the applicants.

Undisputed fact is that the application under Section 91 of CrPC was filed at pre-charge stage and even the application has been rejected at pre-charge stage.

The Supreme Court in the case of State of Orissa v. Debendra Nath Padhi reported in (2005) 1 SCC 568 has held as under:-

“23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.

24. On behalf of the accused a contention about production of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under:

“91. Summons to produce document or other thing.—(1) Whenever any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2)-(3) * * *”

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. Insofar as the accused is concerned, his entitlement to seek order