OM PRAKASH SHARMA

~ v. ·-

CENTRAL BUREAU OF INVESTIGATION, DELHI

APRIL 24, 2000

[S. SAGHIR AHMAD AND DORAISWAMY RAJU, JJ.)

Criminal Law : ~.

Criminal Procedure Code, 1973 : c Sections 227, 22 8, 239 and 240-Framing of charge-Standard of proof- Reliable material-Pmduction of-Held: Not the same as that required at the final stage to decide whether to frame the charge or discharge the accused.

Therefore, accused can produce any reliable material at the framing of the charge stage which affects the very sustainability of the case.

D Section 91-Documents-"Necessary or desirable"-Production of- Issue of summons for-Power of court-Scope and ambit of-Application of accused to summon certain documents rejected-Validity of Held : Courts power to issue summons is unlimited-Superior cou11 will interfere only if the trial court has not exen:ised its discretion judiciously and judicially or if there -+ E is gross or improper failure to exen:ise jurisdiction which is <jemonstrably unreasonable-In the cin:umstances of the case, interference of Supreme Court with the rejection of the application not called for.

Appellant made an application before the Special Judge under Section 91 of the Criminal Procedure Code, 1973 for summoning and produc- F ti on of documents enumerated in the application to show that the appellant had not shown any favour to persons commonly known as Jain Brothers or ...-

to any person for that matter in the course of discharge of his duties while working as DIG, CBI, and that the present action against the appellant was vitiated on account of malafides on the part of the CBI, which was alleged to G bear animus against the appellant.

The Special Judge held that none of the documents sought to be -,;.( summoned would help to show that the case of the prosecution was improbable or unworthy of even a trial and that summoning them at that stage of the proceedings was meant by the appellant to delay the proceedings H initiated by the CBI. 188

O.P. SHARMA v. C.B.I. DELHI 189

~ In revision the High Court held that the exercise of discretion by the A ____,....

Trial Judge in disallowing the claim was neither unjust nor unreasonable nor improper and the order was held to be neither illegal nor vitiated by any infirmity, so as to call for interference, in exercise of the revisional

-- - jurisdiction of the High Court.

Dismissing the appeal, this Court B

HELD: 1.1. The powers conferred under Section 91 of the Criminal Procedure Code, 1973 are enabling in nature aimed at arming the Court or any officer in charge of a Police Station concerned to enforce and to ensure the production of any document or other things 'necessary or desirable' for c the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 would, no doubt, indicate the width of the powers to be unlimited but the in-built limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of D

necessity and desirability, to fulfil the task or achieve the object. The question at the present stage of the proceedings before the Trial Court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. H the accused could produce any reliable material even at that stage which might totally affect even the every E 'sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at - the expense of valuable judicial/public time. It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon atthe stage where the consideration is to be confined to find out a prima facie case F and decide whether it is necessary to proceed to the next stage offraming the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving enquiry into the pros and cons of the case by weighing the evidence or collecting materials, during the

..... _ course or after trial. Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule ofuniversal application G

; i..... and for all times. The fact that in one case the Court thought fit to exercise such powers is no compelling circumstance to do so in each and every case before it, as a matter of course and for the mere asking. The Court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the Court was found to have conducted itself in so H

demonstrably an unreasonable manner unbecoming of a judicial authority, the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the Court and not of any rights concretised in favour of the accused. [192-G-H; 193-A-F]

Union of India v. Prafulla Kumar Sama4 [1979) 3 SCC 4, relied on.

Satish Mehra v. Delhi Administration, [1996) 9 SCC 766 and Ashok Kaushik v. State, (1999) 49 DRJ 202, held inapplicable.

C 1.2. It is to be only seen as to whether the Trial Court has judiciously exercised its discretion. The Trial Court as also the High Court, seem to have properly applied their minds by going into the nature of the documents sought to be summoned, their bearing and relevance for the nature of consideration to be made at that stage of the proceedings before the D Special Judge as well as the necessity and desirability whereof. The consideration so made by the courts belo_w in rejecting the claim of the appellant, could not be held to be either condemnable or constitute any gross or improper failure to exercise their jurisdiction and consequently, it does not call for any interference by this Court. [193-H; 194-A]

E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 392 of 2000.

From the Judgment and Order dated 4.1.9~ of the Delhi High Court in Crl.R. No. 123 of 1997.

F Siddarth Luthra, Pramod Dubey, Ms. Pinky Anand, Ms. Geeta Luthra, .t D.N. Goburdhan and Ms. Ketki Goswami for the appellant.

Altaf Ahmed, Additional Solicitor General, Tara Chandra Sharma, P. Parmeswaran and Ms. Sushma Suri for the Respondent.

G The Judgment of the Court was delivered by

RAJU, J. Leave granted. .·

The above appeal has been filed against the order of the learned Single Judge of the Delhi High Court dated 4.1.99 in Criminal Revision No.123/97, H repelling a challenge made to the order passed by the Special Judge, Delhi,

~ on 26.11.96 in Sessions Case No. OC-224/94, rjecting an application made A • by the appellant under Section 91, Cr.P.C., for summoning and production of documents enumerated in the application. Those documents were stated to be required to show that the appellant had not shown any favour to persons commonly known as Jain Brothers or to any person for that matter in the course of discharge of his duties while working as DIG, CBI, and that present B action against the appellant is vitiated on account of malafides on the part of the CBI, who is alleged to bear animus against the appellant.

The said application was hotly contested by the CBI and the Special Judge held that none of the documents sought to be summoned would help to show that the case of the prosecution was improbable or unworthy of even c a trial and that summoning them at that stage of the proceedings was meant by th<? appellant to delay the proceedings initiated by the CBI. The appellant, as noticed supra, also unsuccessfully knocked at the doors of the High Court before approaching this Court. The learned Judge in the High Court elaborately considered the governing legal principles as laid down by the Courts and the factual details produced and observed that though the language of Section D

91, Cr.P.C., is very wide, not only the powers have to be exercised judiciously but such jurisdiction to order for production of a thing or document would

come into play on the Court being satisfied that it is "necessary or desirable", that it should be produced as being relevant for the inquiry. Therefore, the learned Judge proceeded to advert in detail to the reasons assigned by the E Special Judge and concurred with them that those documents are not of such

:' a nature which would show that the case of the prosecution is improbable and unworthy of trial and that the said attempt of the appellant was merely to delay the proceedings, leaving liberty to summon them at the relevant time. The exercise of discretion by the Trial Judge in disallowing the claim was F considered to be neither unjust nor unreasonable or improper and the order was held to be neither illegal nor vitiated by any infirmity, so as to call for interference, in exercise of the revisional jurisdiction of the High C9urt.

..... _ The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision G

~ of this Court reported in Satish Mehra v. Delhi Administration and Another, [1996] 9 sec 766 laying emphasis on the fact that the very learned Judge in the High Court has taken a different view in such matters, in the decision reported inAshok Kaushik v. State, (1999) 49 DRJ. 202. Mr. Altaf Ahmed, the learned ASG for the respondents, not only contended that the decisions relied H

upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the ourts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings.

Section 227 in Chapter XVIII, pertaining to trial before a Court of Sessions, pursuant to a committal order and Section 239 in Chapter XIX relating• to trial of warrant cases by Magistrates, of the Code stipulates the circumstances and stage at which there could be a discharge of the person accused, and that stage is a stage of consideration, anterior in point of time to framing charges. It is envisaged therein that upon consideration of the record of the case, Police Report and the documents submitted therewith and after hearing the prosecution and the accused, the Court is obligated to decide whether there is sufficient ground to proceed against the accused or that the charge is groundless - and as a consequence thereof either discharge the accused or frame in writing the charges against the accused. The decision reported in (1996) 9 SCC 766 (Supra) and the other decisions adverted to therein dealt with, no doubt, the manner of exercise of such powers and the object underlying those provisions of the Code while construing the amplitude of both the language and content of powers conferred therein. It is in this context this Court held that there is nothing in the Code which shrinks the scope of hearing by confining it to only oral argument of the accused and consideration based upon the police report and documents sent therewith or the materials presented by the prosecution at thantage. In substance, looking into also, by receiving any materials which the accused is able to produce in support of his stand during such arguments was held to be not an anathema.

The further question as to whether even at that stage Section 91 of the Code could be pressed into service by the accused was never in the contemplation or consideration by the learned Judges.

The powers conferred under Section 91 are enabling in nature aimed at arming the Court or any officer incharge of a Police Station concerned to enforce and to ensure the production of any document or other things "necessary or desirable" for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to H those in possession of such material. The language of Section 91 would, no

doubt, indicate the width of the powers to be unlimited but the in-built A limitation inherent therein takes it colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. The question, at the present stage of the proceedings before the Trial Court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce

y reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to fmd out a prima f acie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the .s.ame. This Court has already cautioned against undertaking a roving enquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Sama[ & Am:, [1979] 3 sec 4. Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the Court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The Court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the Court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the Court superior to that CoUrt cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, p the question is one of mere proprieties involved in the exercise of judicial discretion by the Court and not of any rights concretised in favour of the accused.

Therefore, it is to be only seen as to whether the Trial Court has judiciously and judicially exercised its discretion. The Trial Court as also the High Court, seem to have properly applied their minds by going into the nature of the documents sought to be soned, their bearing and relevance for the nature of consideration to be made at that stage of the proceedings before the

Special Judge as well as the necessity and desirability whereof. The consideration so made by the courts below in rejecting the claim of the appellant,

SUPREME COURT REPORTS

(2000] 3 S.C.R.

A. could not be held to be either condemnable or constitute any gross or improper failure to exercise their jurisdiction and consequently, it does not call for any interference in our hands. Therefore, the appeal fails and shall stand dismissed.

The learned counsel for e appellant brought to our notice certain observations made in the order df the High Court about the alleged conduct B of the appellant on receipt of the bribe amount and immediately after the arrival of the raiding party which are not home out by the facts stated in the FIR but which are re<_tlly matters for evidence and argument. The Trial Court is not only expected but obligated to proceed in the matter only strictly as per the materials placed on record and the evidence that may be let in at the C appropriate stage, unmindful of any such observations and there is no need for this Court, to decide such grievance at this stage.

v.s.s.

Appeal dismissed

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