Judicial Analysis Court Copy Headnote Facts Arguments Court observation

An accused cannot invoke Section 91 Cr.P.C. during the pendency of an investigation due to the unilateral nature of the process, though the Court, prosecution, or victim may do so if the production of documents is found necessary and desirable for justice.

Headnote:(A) Code of Criminal Procedure, 1973 - S. 91 - Production of documents - Scope of invocation - An accused cannot invoke Section 91 Cr.P.C. during the pendency of investigation as the process is unilateral; however, the accused may invoke it after filing of the charge-sheet. The court, prosecution, or victim may invoke Section 91 at any stage subject to the court's satisfaction regarding the necessity and desirability of the documents for the administration of justice. (Paras 4.5, 4.6, 7)

Facts of the case:
The petitioner challenged an order by the Trial Court allowing the accused to invoke S. 91 Cr.P.C. for the production of mobile call detail records during the pendency of the investigation. The petitioner contended that the accused has no role during the investigation stage and thus lacks the right to invoke S. 91.

Findings of Court:
The court held that while the accused cannot invoke S. 91 during investigation, the court itself may do so suo moto or upon request if it finds the documents necessary for the discovery of truth. The impugned order of the Trial Court was set aside with liberty to the Trial Court to independently assess the necessity of the call records.

Issues: Whether an accused can invoke S. 91 Cr.P.C. during the pendency of the investigation.

Ratio Decidendi: Section 91 Cr.P.C. is a supplementary power to ensure the discovery of truth and prevent the failure of justice. While the accused generally lacks the right to invoke it during the unilateral stage of police investigation, other stakeholders, including the court, can utilize this power if the requested material is deemed necessary and desirable for the proceedings.

Result: Petition allowed.

Table of Content
1. summary of factual disputes and contentions regarding section 91 cr.p.c. invocation during investigation. (Para 1 , 2 , 3)
2. establishing the scope and stakeholder rights under section 91 cr.p.c. (Para 4 , 5 , 6 , 7)
3. court's final reasoning setting aside the impugned order while preserving the liberty to ensure discovery of truth. (Para 8 , 9 , 10 , 11)

Case Number and Parties Name	M.Cr.C. No.60404 of 2021 Special Police Establishment vs. Umesh Tiwari and another
Date of Order	21/01/2022
Bench Constituted	Division Bench: Justice Sheel Nagu Justice Sunita Yadav
Order delivered by	Justice Sheel Nagu
Whether approved for reporting	Yes
Name of counsels for parties	Shri Abhijeet Awasthy, learned counsel for the petitioner. Shri Sankalp Kochar, learned counsel for the respondent.
Law laid down	1. An accused cannot invoke Section 91 Cr.P.C. during pendency of investigation. 3. However, an accused can invoke Section 91 on and after the filing of charge-sheet. 3. Section 91 can also be invoked by the other stakeholders i.e. victim and also prosecution. 4. Court can also invoke Section 91 Cr.P.C. suo moto. 5. All the above invocation by any stakeholder is subject to satisfaction of the Court about desirability and necessity of the document sought to be produced.
Significant paragraph numbers	4.5, 4.6 & 7.

O R D E R

21.01.2022

Per: Sheel Nagu, J.

Inherent powers of this Court u/S 482 Cr.P.C. are invoked by the prosecution challenging the legality and validity of the order dated 07.10.2021 vide Annexure P/4 whereby an application u/S 91 Cr.P.C., for production of call details of conversation which took place through the mobile of the complainant Ankit Mishra, Rajesh Khede, R.K. Nagaich and Anand Kumar during certain period, was allowed by the Trial Court.

2. Learned counsel for the rival parties are heard on the question of admission as well as final disposal.

CONTENTIONS

3. The first and foremost ground raised by the petitioner-prosecution is that the accused who had successfully invoked Section 91 before the trial Court had no right to do so for the reason that Section 91 is not meant for the benefit of the accused and also that the said cannot be invoked during pendency of investigation. In support, learned counsel for the prosecution had relied upon the decision of the Apex Court in State of Orissa v. Debendra Nath Padhi , 2005 (1) SCC 568 (Para 25) and in the case of Nitya Dharmananda v. Gopal Sheelum Reddy , 2018 (2) SCC 93 (Para 8).

3.1 On the other hand, learned counsel for the respondent accused supporting the impugned order submits that if the call details are not requisitioned and preserved then the same would be lost forever. It is submitted that it was the duty of the prosecution to collect the said material evidence in shape of call details but the prosecution failed to perform its duty and therefore the accused respondent was compelled to step in by invoking Section 91 .

3.2 Learned counsel for the petitioner has relied upon Section 91 (3)(b) of Cr.P.C. and the order dated 27.02.2013 passed in M.Cr.C. No.9274/2012 (Ajaz Khan and others vs. State of M.P.), the order dated 21.08.2020 passed in M.Cr.C. No.16227/2020 (Suryakant Patil vs. State of M.P.) as well as the decision reported in 2015 (2) MPWN Note 66 (Himmat Singh vs. CBN), 2017 (3) MPWN Note 71 (Renu Sharma vs Atul Bhargav), 2015 SCC Online Delhi 9639 (Suresh Kalmadi vs. CBI).

3.3 Shri Kapil Duggal, learned counsel for the complainant relying upon the decisions in K.S. Puttaswamy vs. Union of India, 2017(10) SCC 1 (Para 257 & 406), Mazdoor Kisan Shakti Sangathan v. Union of India, 2018 (17) SCC 324 (Para 61) and Arnab Ranjan Goswami v. Union of India, 2020 (14) SCC 12 (Para 47), contends that since the prosecution is still at the stage of investigation and charge-sheets has not been filed, the question of invoking Section 91 by the accused does not arises since investigation is a unilateral process where the a

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An accused cannot invoke Section 91 Cr.P.C. during the pendency of an investigation due to the unilateral nature of the process, though the Court, prosecution, or victim may do so if the production of documents is found necessary and desirable for justice.

Cases Referred (2)