JUDGMENT
Gitesh Ranjan Bhattacharjee, J.
1. The short question that arises for decision in this revisional proceeding is whether at the stage of consideration of framing of charge by the Court the accused can demand production, inspection or supply of copies of documents which were seized by the police during the investigation of the case but copies of which were not supplied to the accused under Section 207 Cr. P.C. on the ground that the prosecution would not rely on those documents at the trial of the case. In the present case charge-sheet has been submitted under sections 120B, 199 and 377A I.P.C. The allegation of the prosecution in short is that during a specified period there was withdrawal of a total amount of more than Rs. 4,67,900/- from the banks by cheques out of which there was a defalcation of more than Rs. 55,000/- against false vouchers. The two petitioners who along with others are the accused in the case were the Directors of the Company and the allegation is that three Directors were authorised to sign cheques on behalf of the company severally and out of them one is now dead. During investigation police seized 112 cheques out of which copies of 71 cheques were supplied to the accused persons under Section 207 Cr. P.C. The accused persons made prayer for supply of copies of the remaining 31 cheques which were seized during investigation. The learned Magistrate refused to give direction for supply of copies of those 31 cheques to the accused persons in view of the plea of the prosecution that the prosecution would not rely on those 31 cheques.
2. It is submitted by Mr. Ghosh on behalf of the petitioners that even if it is accepted that strictly speaking under Section Cr. P.C. the Magistrate is required to supply to the accused only copies of such documents as the prosecution proposes to rely upon, yet there is neither any express provision nor anything by implication in the Code of Criminal Procedure that could bar inspection or supply of copies of other documents which may be necessary for the accused persons in connection with their defence even at the stage of consideration of the question of framing of charge. In this connection, Mr. Ghosh has also referred to the decision of the Supreme Court in M.M. Mathew v. State of Kerala, JT 1991(1) SC 464. I however find that this aspect of the matter is not required to be considered in this context because there is some express provision in the Criminal Procedure Code which would pemiit direction even at the stage of framing of charge, for production of document if necessary for a legitimate purpose.
3. At the time of submitting charge-sheet the Investigation Officer is required under Sub-section (5) of Section 173 Cr. P.C. to forward to the Magistrate-
“(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses”.
Sub-section (6) of Section 173 however provides that if the Investigation Officer is of opinion that any part of any such statement as aforesaid is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. Section 207 provides for supply of copies of police report and other documents to the accused in a case where the proceeding has been instituted on a police report. Under that Section the Magistrate is required to furnish to the accused, free of cost, a copy of each of the following :
(i) the police report;
(ii) the first information report recorded under Section 154 ;
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such egclusion has been made by the police officer under Sub-section (6) of Section 173 ;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 171.
4. Where however, any document as referred to in clause (v) above is voluminous the Magistrate’ instead of furnishing a copy thereof will allow inspection of the same by the accused personally or through his pleader. Under Section 238 the Magistrate is required to satisfy himself when an accused appears or is brought before him at the commencement of the trial in a warrant procedure case insttuted on a police report that the copies of the papers have been supplied to the accused in compliance with the provisions of Section 207.
5. Reading sections 173, 207 and 238 together it would however appear that, before the commencement of the trial and even before the question of framing of charge is taken up for consideration, the accused is entitled to copies, free of cost, of such documents on which the prosecution would rely for establishing its case. If the prosecution takes the plea that it would not rely on a particular document in that case the accused is certainly not entitled to demand copy of the same under Section 173 or Section 207. Again, during trial after the prosecution evidence is closed, when the accused is called upon to enter on his defence under Section 243(1) in a warrant procedure case instituted on a police report or under Section 233(1) in sessions trial the; accused may under Sub-section (3) of Section 233, as the case may be, apply to the court for the issue of any process for compelling the production of any document or thing and in that event the court shall issue such process unless the court considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. But this opportunity to call for production of document under Section 243 or Section 233 Cr. PC. is available to the accused only at the stage when, during the trial, the accused is called upon, after the conclusion of the prosecution evidence, to enter on his defence and produce his evidence and not at any earlier stage, say, at the stage of the consideration of framing of charge.
6. Section 227 and Section 228 Cr. P.C. require the court, in a sessions trial case, to consider at the stage of framing of charge the records of the case and the documents submitted therewith and also to hear the submissions of the accused and the prosecution and then to form an opinion whether there is sufficient ground for proceeding against the accused. If the court considers that there is no sufficient ground for proceeding against the accused then the accused shall be discharged, but if-the court is of opinion that there is ground for presuming that the accused has committed an offence in that case charge is required to be framed. Also in a warrant procedure case instituted 6n police report while considering the question of framing of charge under Section 239 and Section 240 the court has to consider the police report and the documents sent with it under Section 173 and to give the prosecution and the accused an opportunity of being heard and even may examine the accused if the court thinks necessary to do so. It is therefore evident that even at the stage of consideration of framing of charge the accused is entitled to a hearing on the question as to whether charge should be framed on the basis of the materials on record and if so, under what Section or sections. Therefore to make the hearing meaningful and purposeful it is only fit and proper that the accused Should have an opportunity to demand production of a document even at that stage if such document has any bearing on the question of framing of charge although the prosecution may not rely on the same. It will be only fair and rather sub-serviant to the cause of justice that the document which may have a bearing on the question of framing of charge in the sense of having a potentiality of explaining any circumstance, document or evidence on which the prosecution wants to rely, should be made available so that the accused can make his submission, in a more meaningful way even at the stage of consideration of framing of charge, particularly where such document, of which copy has not been supplied, is in the custody or control of police but the disclosure of which is not otherwise barred by law. There is no doubt that at the stage of consideration of framing of charge the accused will not be entitled to produce or adduce elaborate evidence which he can do after entering on his defence during the trial but even at the stage of consideration of framing of charge the accused undoubtedly has the right to attract the attention of the court to such document or material as may explain the circumstances projected by the materials on which the prosecution wants to rely so that the court may consider whether any charge is at all required to be framed on the basis of the materials on record and if so, what charge is required, to be framed, although at that stage the court will not embark on a roving inquiry about the credibility of the documents and evidence on which the prosecution proposes to rely.
7. In the present case, as we have seen, the investigating agency seized 112 cheques during the investigation. But they refused to supply copies of 31 of such cheques on the ground that the prosecution would not rely on those cheques. But the accused persons think that those cheques also have a bearing on the matter and that is why those cheques were also seized during investigation and those cheques may throw some light over the actual state of affairs and therefore production or inspection of the same at the stage of framing of charge should not be withheld. It is of course true that if the prosecution does not rely on those cheques then the accused are not entitled to get copies of the same under Section 173 or Section 207; nor can they ask for production of the same under Section 233(3) or Section 243(2), as the case may be, till they enter upon defence after the conclusion of the prosecution evidence. But than there is also a general provision contained in Section 91 of the Criminal Procedure Code which empowers the court to issue summons for | production of any document at any stage of investigation, inquiry or trial if the court considers the production of such, document necessary or desirable in the interest of justice. For proper understanding of the amplitude of Section 91 the same is reproduced below :
“91. Summons to produce document or other thing, :-
(1) Whenever any court or any officer-ncharge 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 proceeding 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, (3 of 1872), or the Bankers’ Books Evidence Act, (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”.
8. The word ‘whenever’ clearly indicates that even at the stage of consideration of framing of charge the accused may approach the court under Section 91 of the Code of Criminal Procedure for production of a document which is relevant in this connection. It is however needless to mention that it is a matter of discretion of the court whether any summons should be issued under Section 91 for production of any document and this discretion must be exercised judicially only when the court is convinced that the production of such document is necessary or desirable for the ends of justice. It is needless to mention that such production will not be ordered where there is any legal bar against such production, as for example, the bar of sections 123 and 124 of the Evidence Act, etc. Such production also shall not be ordered where it appears to the court that the prayer for production has been made for the purpose of vexation or delay or for defeating the ends of justice. Having regard to the context and the facts and circumstances, in the present case it cannot be said that the accused persons have prayed for production of the seized cheques for the purpose of vexation or delay or for defeating the ends of justice. The seized cheques on the other hand may have a bearing on the matter and it is also not the plea of the prosecution that these cheques are otherwise protected from disclosure under any provision of law. In the circumstances, I am of opinion that the learned court below should have directed under Section 91 Cr. P.C. for production of the remaining 31 seized cheques and should have afforded an opportunity of inspection of the same by or on behalf of the accused persons even at or before the stage of consideration of framing of charge.
9. In this connection, I may point out that the Andhra Pradesh High Court has also taken a similar view in K.V.R.K. Reddy v. State, 1975 Cr. LJ 980. In that decision after elaborate discussion the Andhra Pradesh High Court made the following observation at page-982 (ibid) :
“It is, therefore, clear that the accused is entitled to apply under Section 91, Criminal Procedure Code for summoning the documents on which he wants to rely even before charges are framed and the Magistrate is empowered to do so provided that he deems it necessary or desirable”.
10. On independent consideration of the relevant provisions of the Criminal Procedure Code as discussed earlier above, I am, in full agreement with the above observation of the Andhra Pradesh High Court. Accordingly, I direct that the investigating agency will produce the remaining 31 seized cheques for inspection of the same by the accused persons or their lawyers. If it is felt convenient by the Investigating agency they may, instead of production, supply xerox copies of those cheques to the accused persons. The learned court below is directed to ensure implementation of the order passed above. The revisional application stands disposed of accordingly.