1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 2 OF 2006 Shri Pravin Kumar, son of Shri Ram Tatan Prasad, Garrison Engineer, resident of Pundah, Thana Fatwa, District Patna, Bihar. ... Applicant versus State, through the Central Bureau of Investigation, Goa. ... Respondent Mr. M. S. Sonak, Advocate for the Applicant. Mr. Joseph Vaz, Special Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 18TH MARCH, 2006. ORAL ORDER The applicant herein is accused in C.C. No.5 of 2003 against whom charge has been framed by the learned Special Judge, Margao on 9­11­2005 under Sections 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. In 2 this petition, the said accused has assailed the common Order dated 27­12­2005 passed by the learned Special Judge, Margao. 2. The applicant/accused filed an application dated 24­11­2005 under Section 207 r/w Section 173 of the Code of Criminal Procedure, 1973(Code, for short) praying therein that the respondent­CBI be directed to give copies of documents to him namely, the document enlisted at serial no.6 containing pages 1 to 480. In reply filed to the said application the respondent had stated that the accused was supplied with the copies of relevant pages of the said file at serial no.6 and the original was submitted to the Court and, therefore, the application was without substance. The learned Special Judge rejected the said application observing that the records showed that the CBI had furnished all the documents to the accused as required under Section 207 of the Code. Admittedly, the said file enlisted at item no.6 of the list of documents containing pages 1 to 480 was sent by the respondent­CBI along with the charge­sheet filed against the accused. Admittedly, copies from pages 1 to 480 of the said file have not been given to the accused contending that only those copies of the pages which 3 would be relied upon by the respondent, have been given to the accused. Section 207 of the Code makes a provision for the supply to the accused of the copy of the police report and other documents mentioned therein. In other words, the accused is entitled to copies of not only the police report but also copies of the F.I.R., the statements recorded, confessional statements as well as any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub­section(5) of Section 173 of the Code. Admittedly, the said file at serial no.6 containing pages 1 to 480 is a file which has been sent to the Special Judge along with the charge­sheet of which neither copies have been furnished nor an inspection provided of the said file to the accused. It is also not known as to which of the pages from 1 to 480 have been provided to the accused and which of the pages would be relied upon by the respondent in the course of the trial. Section 207 of the Code provides that the documents sent along with the charge­sheet have got to be furnished to the accused and in case any of the document is found to be voluminous, inspection of the same has got to be provided to the accused either personally or through pleader in Court. It appears that the learned Special Judge 4 completely lost sight of the above provisions of Section 207 of the Code. The said file at serial no.6 having been sent along with the charge­sheet/Police Report, the accused was entitled either to inspect the same or be furnished with copies thereof. Since the said file contains pages 1 to 480, it is rather voluminous, the ends of justice would be served by providing inspection of the same to the accused either personally or through pleader in Court, as contemplated by the second proviso below Section 207 of the Code. 3. The accused also filed another application­Exh.29 on the same day under Section 91 of the Code which came to be dismissed only because another application filed under the same Section was dismissed by the learned Special Judge on 9­11­2005 prior to framing of charge. When the said application was filed under Section 91 of the Code, charge was not framed against the accused and presumably the application of the accused filed under Section 91, prior to framing of charge, was rejected because of the law laid down by the Supreme Court in the case of State of Orissa v. Debendra Nath Padhi ((2005) 1 SCC 568) (which has again been followed by the Supreme Court in S.M.S. 5 Pharmaceuticals Ltd. v. Neeta Bhalla and another (2005(5) ALL MR (S.C.) 1118)). The Supreme Court has held that a person who is sought to be made an accused has no right to produce any documents, or evidence in defence at that stage and the Magistrate cannot be asked to look into the documents produced by the accused at that stage. 4. Admittedly, in the case at hand, after the framing of charge the accused had filed the said application with a view to summon certain documents which the accused stated were required to defend himself effectively. According to the accused, the said documents enlisted by him in his application dated 24­11­2005 were required by him to show that the genesis of the complaint was false and in fact since the works were completed the allegations made against the accused were baseless and under grudge and animosity. 5. The learned Special Judge proceeded to dismiss the said application on the specious ground that a similar application filed earlier was dismissed by him by Order dated 9­11­2005. 6. The approach of the learned Special Judge has been incorrect. It has been submitted on behalf of the respondent that the accused had not 6 set out in the application as to why he required the said documents. In other words, it is contended, the pleadings in the application were insufficient for the learned Special Judge to have considered the said application. That is not the finding of the learned Special Judge. On the other hand, it has been submitted on behalf of the accused that pleading anything further in the said application, than what was stated, would amount to disclosing the defence of the accused before hand when the accused is entitled not to disclose the same. It is contended that the documents are required for cross­examination by the accused to show that the genesis of the complaint was false. In my view, the contentions raised on behalf of both the parties cannot be entirely accepted. 7. Section 91 of the Code deals with summons to produce a document or other thing. Section 91 could be truncated for the sake of convenience and when so truncated it reads as follows:­ "Whenever any Court considers that the production of any document or other thing is necessary or desirable for the purposes of any trial or other proceedings under this Code by or before such Court, such Court may issue a summons, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce 7 it, or to produce it, at the time and place stated in the summons or order". 8. We would not be concerned with sub­section (2) of Section 91 of the Code. 9. As can be seen from the plain reading of Section 91 of the Code, as reproduced hereinabove, what a party has to show to the Court, while applying for summons for documents is that the production of the document so sought to be summoned is necessary or desirable for the purpose of trial or other proceeding under the Code and such a document or thing is in possession or power of a particular person who is required to produce the same for the purpose of the trial. The learned Special Judge has not cared to decide the said application of the accused on the touch stone of Section 91 of the Code or on merits of the same and also did not make an effort to find out whether the documents enlisted by the accused in the said application were at all necessary or desirable to be summoned for the purpose of the defence of the accused. Shri Sonak, the learned Counsel on behalf of the accused concedes that relevancy of the documents sought to be summoned has not been set out in the application. The application also does not set out in whose possession or power are the said documents, 8 sought to be summoned and, in this context, Shri Vaz, the learned Public Prosecutor, is right in contending that the application lacked necessary details for the learned Special Judge to have considered the same. There is no doubt that whether a particular document is to be called as it is necessary or desirable for the purpose of trial, is primarily one of the discretion of the trial Court and the Court is not mechanically expected to order for production at the request of either side without considering whether the same is necessary or desirable because a third party cannot be easily compelled to part with his documents, which may cause hardship to him. Before considering such an application, it is necessary for the trial Court first to consider the necessity or desirability of summoning for the production of the document and then to find out in whose possession or power it is. It cannot be expected on the part of either party, that the Court will go on a wild goose chase without knowing in whose possession or power the document is. This is also absolutely necessary and to this extent, the application filed on behalf of the accused was rather vague. 10. The accused has also not set out, for the cross examination of which of the prosecution witnesses, any of the said documents would be required by him. It is quite possible that in the course of cross examination, the accused is able to obtain certain admissions from the witnesses and in 9 that event, no production of the documents would be necessary. It is also quite probable that different documents would be required to confront different witnesses, which would be examined by the prosecution as the trial progresses, and it is only after considering these aspects that the learned Special Judge would be in a better position to find out which of the documents sought to be summoned would be required for the purpose of the defence of the accused. 11. Before concluding, it would be advantageous to refer to some of the authorities cited at the Bar, on behalf of the accused. In the case of Krishna Dayal v. Emperor (AIR(33) 1946 Allahabad 227) it was stated that admissibility of a document is the rule and not the exception and every document, particularly in a criminal trial, must be admitted in evidence to throw light on the obscure corners of the case. That light may always be welcome, unless its entry in the Court is shut out for very special reasons, because the object of a trial in every case is to ascertain the truth in respect of the charge made. In the case of C. M. Armugam v. State of Mysore(AIR 1961 MYSORE 198) it was observed that it could not be reasonably contended that the accused, if he could make out that the production of any document or other thing is necessary or desirable for the purposes of cross­examination, could seek the aid of the Court and that there was no 10 principle or reason which should prevent the accused from rebutting the prosecution case, by effective cross­examination of the prosecution witnesses with reference to relative documents or things, or for the accused to seek to obviate the need to examine his own witnesses by cross­examining the prosecution witnesses after the framing of the charge with reference to such documents or things. In the case of Hari Charan v. The State (AIR 1955 Punjab 17) it was stated that the Magistrate could not refuse to call the documents, merely on the ground that the documents could be summoned in defence, if at all needed. In the case of Muhammad Rahim v. Emperor (AIR 1935 Sind 13) a Full Bench of that Court stated that a party can at any stage apply to call for production of documents and is entitled to its production if he satisfies the Court that it is necessary. 12. Needless to observe, the necessity or desirability of the document to be summoned for the defence of the accused is the paramount consideration. 13. As stated by the Supreme Court in the case of State of Orissa v. Debendra Nath Padhi(supra) the width of the powers of Section 91 are unlimited and what is really required to be considered is the necessity and desirability of calling for the documents for the purposes of the prosecution 11 or the defence and what is to be guarded is from going for a roving or fishing inquiry. The Supreme Court in the said case was considering a limited issue whether a trial Court at the time of framing of charge could consider the material filed by the accused and it answered the said issue in the negative. Therefore, the Supreme Court observed that as far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily come to the stage of defence. The aforesaid observation cannot be taken as a statement of law, going against the accused for applying for documents which are necessary for his defence at the stage of cross­ examination of prosecution witnesses. It is well known that the accused can establish or probablise his defence through the prosecution witnesses as well, and being so, if any document or thing is required to establish that defence there is no reason why the Court should not extend its helping hand to the accused. 14. In view of the above, the impugned order is hereby set aside. As far as the first application is concerned, the learned Special Judge is directed to allow the accused to take inspection of the said file at serial no.6, as required under Section 207 of the Code, either in person or through pleader. As far as second application is concerned, the accused is given liberty to file additional application setting out the necessity or desirability 12 of documents to be summoned and also mentioning in whose possession or power the said documents are. The learned Special Judge would be at liberty to decide the said application­exhibit 29, along with the application to be filed, on its own merits and in accordance with what has been stated in Section 91 of the Code. Needless to observe, the accused would certainly be required to set out the necessity of each document to be summoned and in whose possession and power is the same before the application could be considered by the learned Special Judge. The learned Special Judge would be at liberty to dispose of the application­exhibit 29, along with the application to be filed, at his discretion, either immediately or as the trial progresses. 15. The petition is hereby allowed in the light of the above observations, but with no order as to costs. N. A. BRITTO, J. RD