[2017] 12S.C.R.118

NITYA DHARMANANDA @ K. LENIN & ANR

SRI GOPAL SHEELUM REDDY ALSO KNOWN AS NITHYA

BHAKTANANDA AND ANR.

(Criminal Appeal No. 2114 of2017)

DECEMBER07,2017

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

Code of Criminal Procedure, 1973 - s.91 - Applicability of- Respondent charge sheeted for offences, inter alia, u/s. 376 !PC - Respondent filed application u/s.91 before trial court praying that the entire material available with the investigator, which was not made part of the chargesheet, ought to be suminoned u!s. 91 - D Application was dismissed - High Court reversed the order of trial court - On appeal, held: While ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the Court is satisfied that there is material of sterling quality which has been withheld by the

investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a parl of the charge sheet - However, this does not give the defence a right to invoke s.91 de hors the satisfaction of the Court at the stage of charge - Accordingly, contrary view in tlze impugned judgment cannot be sustained and is. set aside.

Hardeep Singh Etc. v. State of Punjab and Ors. etc.

(2014) 3 SCC 92 : [2014] 2 SCR 1 - followed.

State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 : (2004] Suppl. SCR 460 - referred to.

Case Law Reference

[2004] 6 Suppl. SCR 460

[2014] 2 SCR 1

referred to

followed

Para4

Para8

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A No.2114of2017.

From the Judgment and Order dated 21.07 .2016 of the High Court ofKarnataka at Bengaluru in Criminal Petition No. 938 of2016

WITH

Cr!. A. No. 2115 of2017.

Sidharth Luthra (AC), Shekhar Naphade, C. V. Nagesh, Ms. Kiran Suri, Sr. Ad vs., Devadatt Kamat, AAG, Gautam K, Ashwin Yaish, Vinod Pandey, Kuna! Awana, Sekh Zakir Hussain, Nitin Kumar Thakur, Joseph Aristotel S, Rajesh Inamdar, Ms. Priya Aristotle, Ashish Yadav, Javedur C Rahman, Aditya Bhat, Anand San jay M. Nuli, Dharm Singh, S. J. Amit, Saket Gogia, Suraj Kaushik, M/s. Nuli & Nuli, V. N. Raghupathy, Parikshit P. Angadi, Md. Apzal Ansari, Mis. Aditya Bhat, Ad vs for the appearing parties.

The following Order of the Court was delivered :

ORDER

1. Delay condoned. Leave granted.

2. We have heard learned counsel for the State, the complainant, the accused and the learned amicus, Mr. Siddharth Luthra, Senior Advocate.

3. The respondent, Gopal Sheelum Reddy alias Nithya Bhaktananda, was charge sheeted for offences, inter alia, under Section

376 of the Indian Penal Code. The respondent approached the High Court with the prayer that the entire material available with the investigator, which was not made part of the chargesheet, ought to be summoned under Section 91 of the Cr.P.C. The High Court, reversing the contrary view of the trial court, allowed the said application.

4. Contention raised on behalf of the appellants is that the view of

the High Court is contrary to law laid down by this Court in State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 and reiterated G in the subsequent decisions. The defence could not be considered at the stage of framing of charge so as to avoid a mini trial.

5. Learned counsel for the defence, on the other hand, submitted that if the investigator is not fair and the material of sterling quality, H

though seized during investigation and available with him, is deliberately left out from the chargesheet, there is no bar for the court to summon the said material.

6. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even ifthe accused may have no right to invoke Section 91. To exercise this power, the court is to bt' satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge.

7. In Debendra Nath Padhi, supra, it was observed:

"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 relevallt 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 under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accusedi If under Section 227, what is necessary and relevant is only the record produced in terms of Secti<in 173 of the Code, the

accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof."

8. In Hardeep Singh Etc. versus State of Punjab and ors.

Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:

"19. Tlze court is tlze sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts clt times to get himself absolved even at the stage uf investigation or inquiry even though he may be connected with the commission of the offence."

9. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge. '

I 0. Accordingly, the view to the contrary in the impugned judgment cannot be sustained and is set aside.

11. The trial court may now proceed to deal with the issue of framing of charge in the light of the observations made hereinabove and also to proceed with the matter expeditiously in accordance with law.

The parties are directed to appear before the trial court for further proceedings on Monday, the 12'" February, 2018.

A We record our deep appreciation for the valuable assistance rendered by Mr. Siddharth Luthra, learned senior counsel, as amicus.

The appeals are accordingly disposed of.

Divya Pandey Appeals disposed of.