Introduction
It is obvious that since the human civilization has evolved, crime has been a baffling issue since then. There is no society where the problem of crime does not exist. A crime is a normal phenomenon, a society composed of persons with angelic qualities would not be free from violations of the norms of the society.
Crime is a dynamic concept which keeps changing with the transformation in the society. With the passage of time, the definition and concept of crime is evolving. During 12th and 13th Century the English society included those acts as crime which was committed against the State or religion.
Code of Criminal Procedure
The Code of Criminal Procedure (CrPC) is based on the principle of fair and natural justice. The core principle of CrPC is to impart justice i.e. an accused person should be given equal chance to be heard and to defend himself.
General provision regarding search and seizure
Section 91 of the CrPC deals with the power of the courts and police authorities regarding search and seizure of document or thing. We will discuss about the power of the courts or officer in charge to issue a summons u/s 91(1) of the CrPC. The issue of power U/s 91(1) has been dealt in detail by the Supreme Court of India in M.P. Sharma & others v Satish Chandra, State of Bombay v Kathi Kalu Oghad and State of Gujarat v Shyamlal Mohanlal Chowksi.
Section 91 of CrPC with headnote Process to Compel Production of things states as follows:
“(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 proceedings 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) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed:
(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891) or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”
The powers conferred in this Section is enabling in nature, aimed at arming the Court to enforce and ensure production of any document or other things, ‘necessary or desirable’, for any investigation, inquiry, trial or other proceeding under the CrPC, by issuance of a summons or a written order to the ones’ who are in possession of such materials.
In the case of State of Orissa v. Debendra N. Padhi, Appeal (crl.) 497 of 2001, the Apex Court while considering the scope of Section 91 of the CrPC held that “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.”
Amit Sukhija v. Pritpal Singh: Case Analysis
The Punjab and Haryana High Court Justice Jasjit Singh Bedi in Amit Sukhija v. Pritpal Singh, CRM-M-10937-2020, held that at the stage of deciding the application u/s 91 CrPC, the Court could not prejudge the evidentiary value of defense evidence sought to be produced and dismiss the application without going into the merits of the case.
Facts in brief of the case
‘X’ the petitioner issued the legal notice u/s 138 of the Negotiable Instrument Act (NI Act). ‘Y’ the respondent issued a cheque which was presented for encashment in his account, however, it was returned with the remarks i.e. “Funds Insufficient”. ‘X’ stated that he did not deal with Pratap Singh, who is not known to him and the cheque appears to be forged. ‘Y’ then filed the complaint u/s 138 read with (r.w.) Section 142 of the Negotiable Instruments Act, 1881. ‘X’ moved an application u/s 91 of CrPC for seeking directions to the Mobile Telecommunication Companies for production of the call details.
X’s counsel contended that production of call details would create a better position to establish the de facto complainant. It was added that the motive of filing the application u/s 91 of the CrPC is not to delay the court proceedings. Reliance was placed on the case of T. Nagappa v. Y.R. Muralidhar, 2008 (5) SCC 633 in which the Court stated that what should be the nature of defense evidence sought to be produced is not a matter which should be left only to the discretion of the Court. It was for the accused to prove his defense in the manner that he thinks fit. The Court could not prejudge the evidentiary value of defense evidence sought to be produced. That would be a matter to be adjudicated during trial and not at the stage of deciding of an application under Section 91 CrPC.
The contentions of Y’s counsel were that the main purpose of filing the application is to delay the proceedings and the complainant was in contact with the defacto complainant even then it was not sufficient to prove that the defacto complainant was in fact pursuing the present complaint through Pritpal Singh as it is quite possible that they enjoyed friendly relations.
Observations of the Court
The Court placed reliance on the case of T. Nagappa v. Y.R. Muralidhar (supra). It was held by the Court that the application u/s 91 of the CrPC cannot be said to be moved by the party only to delay proceedings. If the production of the documents/call records is permitted as per the application u/s 91CrPC, the effect of such documents/call records would undoubtedly be a matter of adjudication during the trial.
The Court further clarified that the Trail Court would decide the evidentiary value of the said documents. However, it cannot be concluded that the production of the said documents is irrelevant.
The Court observed that the very basis of the entire case of ‘X’ is that the said cheque had been given to Raj Kumar @ Hira, who has missed it and ‘X’ must be given an opportunity to lead his defense in the manner that he thinks fit.
Hence, the Court supported the contentions of the petitioner that at the stage of deciding this application u/s 91 of the CrPC, the Court could not prejudge the evidentiary value of defense evidence sought to be produced and dismiss the application.
: Very well illustrated the right of the accused. A court cannot dismiss a Section 91 application solely based on the anticipated evidentiary value of the defense evidence that is sought to be produced. An accused individual has the right to produce evidence and should be given the opportunity to defend themselves in a way they deem beneficial.
: Very well illustrated the right of the accused. A court cannot dismiss a Section 91 application solely based on the anticipated evidentiary value of the defense evidence that is sought to be produced. An accused individual has the right to produce evidence and should be given the opportunity to defend themselves in a way they deem beneficial.