{"id":6184,"date":"2004-11-29T00:00:00","date_gmt":"2004-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-orissa-vs-debendra-nath-padhi-on-29-november-2004"},"modified":"2015-12-19T23:43:12","modified_gmt":"2015-12-19T18:13:12","slug":"state-of-orissa-vs-debendra-nath-padhi-on-29-november-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-orissa-vs-debendra-nath-padhi-on-29-november-2004","title":{"rendered":"State Of Orissa vs Debendra Nath Padhi on 29 November, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Orissa vs Debendra Nath Padhi on 29 November, 2004<\/div>\n
Author: Y.K.Sabharwal<\/div>\n
Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (crl.)  497 of 2001\n\nPETITIONER:\nState of Orissa\n\nRESPONDENT:\nDebendra Nath Padhi\n\nDATE OF JUDGMENT: 29\/11\/2004\n\nBENCH:\nY.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
[With SLP (Crl.) No.1912 of 2003 and Crl.A.No.46 of 2004]<\/p>\n
Y.K.Sabharwal, J.\n<\/p>\n
\tCan the trial court at the time of framing of charge consider material
\nfiled by the accused, is the point for determination in these matters.
\n\tIn Satish Mehra v. Delhi Administration and Another<\/a> [(1996) 9
\nSCC 766], a two judge Bench judgment, it was observed that if the
\naccused succeeds in producing any reliable material at the stage of taking
\ncognizance or framing of charge which might fatally affect even the very
\nsustainability of the case, it is unjust to suggest that no such material
\nshould be looked into by the court at that stage.  It was held that the object
\nof providing an opportunity to the accused of making submissions as
\nenvisaged in Section 227 of the Code of Criminal Procedure, 1973 (for
\nshort, ‘the Code’) is to enable the court to decide whether it is necessary to
\nproceed to conduct the trial.  If the materials produced by the accused
\neven at that early stage would clinch the issue, why should the court shut it
\nout saying that such documents need be produced only after wasting a lot
\nmore time in the name of trial proceedings.  It was further observed that
\nthere is nothing in the Code which shrinks the scope of such audience to
\noral arguments and, therefore, the trial court would be within its power to
\nconsider even material which the accused may produce at the stage
\ncontemplated in Section 227 of the Code.\n<\/p>\n
\tWhen the arguments in the present case were heard by a two-judge
\nBench, considering various decisions including three-judge Bench
\ndecisions in Superindent and Remembrancer of legal Affairs, West
\nBengal v. Anil Kumar Bhunja and Others<\/a> [ (1979) 4 SCC 274 ] and
\nState of Bihar v. Ramesh Singh<\/a> [ (1977) 4 SCC 39 ]  it was observed
\nthat at the time of framing a charge the trial court can consider only the
\nmaterial placed before it by the investigating agency, there being no
\nrequirement in law for the court to grant at that stage either an opportunity
\nto the accused to produce evidence in defence or consider such evidence
\nthe defence may produce at that stage.  But having regard to the views
\nexpressed in Satish Mehra’s case (supra) it was directed that the matter
\nshould be referred to a larger Bench.  The order referring the matter to
\nlarger Bench is reported in State of Orissa v. Debendra Nath Padhi<\/a>
\n[(2003) 2 SCC 711].  Accordingly, these matters have been placed before
\nus to determine the question above-noticed.\n<\/p>\n
\tThe views expressed in Satish Mehra’s case (supra) have been
\nstrongly supported by learned counsel for the accused on the ground of
\njustice, equity and fairness and also on the touchstone of Article 21 of the
\nConstitution of India contending that reversal of that view would lead to
\nunnecessary harassment to the accused by having to face the trial for
\nyears, waste of valuable time of the court, heavy cost, despite the fact that
\neven at the early stage of framing of charge or taking cognizance the
\naccused is in a position to produce unimpeachable material of sterling
\nquality to clinchingly  show that there is no prospect of conviction at the
\nconclusion of the trial.  Satish Mehra’s case was further supported on
\ninterpretation of Sections 227 and 239 of the Code.
\n\tOn the other hand, it was contended on behalf of the State that the
\nobservations made in Satish Mehra’s case run counter to the views
\nexpressed by this court in large number of decisions, it amounts to
\nupsetting well settled legal propositions and making nugatory amendments
\nmade in Code of Criminal Procedure from time to time and would result in
\nconducting a mini trial at the stage of framing of charge or taking
\ncognizance.  Such a course would not only be contrary to the object and
\nthe scheme of the Code but would also result in total wastage of the court
\ntime because of conducting of two trials, one at the stage of framing
\ncharge and the other after the charge is framed.  It was contended that on
\ntrue construction of Section 227 of the Code only the material sent by
\nprosecution along with the record of the case and the documents sent
\nalong with it can be considered by the trial court at the time of framing of
\nthe charge.  The accused at that stage has no right to place before the
\ncourt any material.\n<\/p>\n
\tAt the stage of framing charge, the trial court is required to consider
\nwhether there are sufficient grounds to proceed against the accused.
\nSection 227 of the Code provides for the eventuality when the accused
\nshall be discharged.  If not discharged, the charge against the accused is
\nrequired to be framed under Section 228.  These two sections read as
\nunder:\n<\/p>\n
“Section 227 of Cr.PC.\n<\/p>\n
DischargeIf, upon consideration of the record
\nof the case and the documents submitted
\ntherewith, and after hearing the submissions of
\nthe accused and the prosecution in this behalf,
\nthe Judge considers that there is not sufficient
\nground for the proceeding against the accused,
\nhe shall discharge the accused and record his
\nreasons for so doing.\n<\/p>\n
Section 228 of Cr.PC<\/p>\n
Framing of charge (1) If, after such
\nconsideration and hearing as aforesaid, the
\nJudge is of opinion that there is ground for
\npresuming that the accused has committed an
\noffence which<\/p>\n
(a)\tis not exclusively triable by the Court of
\nSession, he may, frame a charge against the
\naccused and, by order, transfer the case for trial
\nto the Chief Judicial Magistrate, and thereupon
\nthe Chief Judicial Magistrate shall try the offence
\nin accordance with the procedure for the trial of
\nwarrant-cases instituted on a police report;\n<\/p>\n
(b)   is exclusively triable by the Court, he shall
\nframe in writing a charge against the accused.\n<\/p>\n
(2) \tWhere the Judge frames any charge under
\nclause (b) of sub-section (1), the charge shall be
\nread and explained to the accused and the
\naccused shall be asked whether he pleads guilty
\nof the offence or claims to be tried.”\n<\/p>\n
\tSimilarly, in respect of warrant cases triable by Magistrates,
\ninstituted on a police report, Sections 239 and 240 of the Code are the
\nrelevant statutory provisions.  Section 239 requires the Magistrate to
\nconsider ‘the police report and the documents sent with it under Section
\n173’ and, if necessary, examine the accused and after giving accused an
\nopportunity of being heard, if the Magistrate considers the charge against
\nthe accused to be groundless, the accused is liable to be discharged by
\nrecording reasons thereof.\n<\/p>\n
\tWhat is to the meaning of the expression ‘the record of the case’ as
\nused in Section 227 of the Code.  Though the word ‘case’ is not defined in
\nthe Code but Section 209 throws light on the interpretation to be placed on
\nthe said word.  Section 209 which deals with the commitment of case to
\nCourt of Session when offence is triable exclusively by it, inter alia,
\nprovides that when it appears to the Magistrate that the offence is triable
\nexclusively by the Court of Session, he shall commit ‘the case’ to the Court
\nof Session and send to that court ‘the record of the case’ and the
\ndocument and articles, if any, which are to be produced in evidence and
\nnotify the Public Prosecutor of the commitment of the case to the Court of
\nSession.  It is evident that the record of the case and documents submitted
\ntherewith as postulated in Section 227 relate to the case and the
\ndocuments referred in Section 209.  That is the plain meaning of Section
\n227 read with Section 209 of the Code.  No provision in the Code grants to
\nthe accused any right to file any material or document at the stage of
\nframing of charge.  That right is granted only at the stage of the trial.
\nFurther, the scheme of the Code when examined in the light of the
\nprovisions of the old code of 1898, makes the position more clear.  In the
\nold code, there was no provision similar to Section 227.  Section 227 was
\nincorporated in the Code with a view to save the accused from prolonged
\nharassment which is a necessary concomitant of a protracted criminal trial.
\nIt is calculated to eliminate harassment to accused persons when the
\nevidential materials gathered after investigation fall short of minimum legal
\nrequirements.  If the evidence even if fully accepted cannot show that the
\naccused committed the offence, the accused deserves to be discharged.
\nIn the old Code, the procedure as contained in Sections 207 and 207 (A)
\nwas fairly lengthy.  Section 207, inter alia, provided that the Magistrate,
\nwhere the case is exclusively triable by a Court of Session in any
\nproceedings instituted on a police report, shall follow the procedure
\nspecified in Sectioin 207 (A).  Under Section 207 (A) in any proceeding
\ninstituted on a police report the Magistrate was required to hold inquiry in
\nterms provided under sub-section (1), to take evidence as provided in sub-
\nsection (4), the accused could cross-examine and the prosecution could
\nre-examine the witnesses as provided in sub-section (5), discharge the
\naccused if in the opinion of the Magistrate the evidence and documents
\ndisclosed no grounds for committing him for trial, as provided in sub-
\nsection (6) and to commit the accused for trial after framing of charge as
\nprovided in sub-section (7), summon the witnesses of the accused to
\nappear before the court to which he has been committed as provided in
\nsub-section (11) and send the record of the inquiry and any weapon or
\nother thing which is to be produced in evidence, to the Court of Session as
\nprovided in sub-section (14).  The aforesaid Sections 207 and 207(A) have
\nbeen omitted from the Code and a new Section 209 enacted on the
\nrecommendation of the Law Commission contained in its 41st Report. It
\nwas realised that the commitment inquiry under the old Code was resulting
\nin inordinate delay and served no useful purpose.  That inquiry has,
\ntherefore, been dispensed with in the Code with the object of expeditious
\ndisposal of cases. Instead of committal Magistrate framing the charge, it is
\nnow to be framed by Court of Session under Section 228 in case the
\naccused is not discharged under Section 227.  This change brought out in
\nthe code is also required to be kept in view while determining the question.
\nUnder the Code, the evidence can be taken only after framing of charge.
\nNow, let us examine the decisions which have a bearing on the point
\nin issue.\n<\/p>\n
\tIn State of Bihar v. Ramesh Singh<\/a> [ (1977) 4 SCC 39 ] considering
\nthe scope of Sections 227 and 228 of the Code, it was held that at the
\nstage of framing of charge it is  not obligatory for the Judge to consider in
\nany detail and weigh in a sensitive balance whether the facts, if proved,
\nwould be incompatible with the innocence of the accused or not.  At that
\nstage, the court is not to see whether there is sufficient ground for
\nconviction of the accused or whether the trial is sure to end in his
\nconviction. Strong suspicion, at the initial stage of framing of charge, is
\nsufficient to frame the charge and in that event it is not open to say that
\nthere is no sufficient ground for proceeding against the accused.
\n\tIn Superintendant and Remembrancer of legal Affairs, West
\nBengal v. Anil Kumar Bhunja and Others<\/a> [(1980) 1 SCR 323] a three-
\njudge Bench held that the Magistrate at the stage of framing charges had
\nto see whether the facts alleged and sought to be proved by the
\nprosecution prima facie disclose the commission of offence on general
\nconsideration of the materials placed before him by the investigating police
\nofficer (emphasis supplied).  Though in this case the specific question
\nwhether an accused at the stage of framing of charge has a right to
\nproduce any material was not considered as such, but that seems implicit
\nwhen it was held that the Magistrate had to consider material placed
\nbefore it by the investigating police officer.\n<\/p>\n
\tIn State of Delhi v. Gyan Devi and Others<\/a>   [(2000) 8 SCC 239]
\nthis Court reiterated that at the stage of framing of charge the trial court is
\nnot to examine and assess in detail the materials placed on record by the
\nproseuction nor is it for the court to consider the sufficiency of the materials
\nto establish the offence alleged against the accused persons.
\n\tIn State of Madhya Pradesh v. S.B.Johari and Others<\/a> [(2000) 2
\nSCC 57] it was held that the charge can be quashed if the evidence which
\nthe prosecutor proposes to adduce to prove the guilt of the accused, even
\nif fully accepted, cannot show that the accused committed the particular
\noffence.  In that case, there would be no sufficient ground for proceeding
\nwith the trial.\n<\/p>\n
\tIn State of Maharashtra v. Priya Sharan Maharaj and Others<\/a>
\n[(1997) 4 SCC 393] it was held that at Sections 227 and 228 stage the
\ncourt is required to evaluate the material and documents on record with a
\nview to finding out if the facts emerging therefrom taken at their face value
\ndisclose the existence of all the ingredients constituting the alleged
\noffence.  The court may, for this limited purpose, sift the evidence as it
\ncannot be expected even at that initial stage to accept all that the
\nprosecution states as gospel truth even if it is opposed to common sense
\nor the broad probabilities of the case.\n<\/p>\n
\tAll the decisions, when they hold that there can only be limited
\nevaluation of materials and documents on record  and sifting of evidence
\nto prima facie find out whether sufficient ground exists or not for the
\npurpose of proceeding further with the trial, have so held with reference to
\nmaterials and documents produced by the prosecution and not the
\naccused.  The decisions proceed on the basis of settled legal position that
\nthe material as produced by the prosecution alone is to be considered and
\nnot the one produced by the accused.  The latter aspect relating to the
\naccused though has not been specifically stated, yet it is implicit in the
\ndecisions.  It seems to have not been specifically so stated as it was taken
\nto be well settled proposition.  This aspect, however, has been adverted to
\nin State Anti-Corruption Bureau, Hyderabad and Another v. P.
\nSuryaprakasam [1999 SCC (Crl.) 373] where considering the scope of
\nSections 239 and 240 of the Code it was held that at the time of framing of
\ncharge, what the trial court is required to, and can consider are only the
\npolice report referred to under Section 173 of the Code and the documents
\nsent with it.  The only right the accused has at that stage is of being heard
\nand nothing beyond that (emphasis supplied).  The judgment of the High
\nCourt quashing the proceedings by looking into the documents filed by the
\naccused in support of his claim that no case was made out against him
\neven before the trial had commenced was reversed by this Court.  It may
\nbe noticed here that learned counsel for the parties addressed the
\narguments on the basis that the principles applicable would be same
\nwhether the case be under Sections 227 and 228 or under Sections 239
\nand 240 of the Code.\n<\/p>\n
\tAs opposed to the aforesaid legal position, the learned counsel
\nappearing for the accused contended that the procedure which deprives
\nthe accused to seek discharge at the initial stage by filing unimpeachable
\nand unassailable material of sterling quality would be illegal and violative of
\nArticle 21 of the Constitution since that would result in the accused having
\nto face the trial for long number of years despite the fact that he is liable to
\nbe discharged if granted an opportunity to produce the material and on
\nperusal thereof by the court.  The contention is that such an interpretation
\nof Sections 227 and 239 of the Code would run the risk of those provisions
\nbeing declared ultra vires of Articles 14 and 21 of the Constitution and to
\nsave the said provisions from being declared ultra vires, the reasonable
\ninterpretation to be placed thereupon is the one which gives a right,
\nhowsoever, limited that right may be, to the accused to produce
\nunimpeachable and unassailable material to show his innocence at the
\nstage of framing charge.\n<\/p>\n
We are unable to accept the aforesaid contention.  The reliance on
\nArticles 14 and 21 is misplaced.  The scheme of the Code and object with
\nwhich Section 227 was incorporated and Sections 207 and 207 (A) omitted
\nhave already been noticed.  Further, at the stage of framing of charge
\nroving and fishing inquiry is impermissible.  If the contention of the accused
\nis accepted, there would be a mini trial at the stage of framing of charge.
\nThat would defeat the object of the Code.  It is well-settled that at the stage
\nof framing of charge the defence of the accused cannot be put forth.  The
\nacceptance of the contention of the learned counsel for the accused would
\nmean permitting the accused to adduce his defence at the stage of framing
\nof charge and for examination thereof at that stage which is against the
\ncriminal jurisprudence.  By way of illustration, it may be noted that the plea
\nof alibi taken by the accused may have to be examined at the stage of
\nframing of charge if the contention of the accused is accepted despite the
\nwell settled proposition that it is for the accused to lead evidence at the trial
\nto sustain such a plea.  The accused would be entitled to produce
\nmaterials and documents in proof of such a plea at the stage of framing of
\nthe charge, in case we accept the contention put forth on behalf of the
\naccused.  That has never been the intention of the law well settled for over
\none hundred years now. It is in this light that the provision about hearing
\nthe submssions of the accused as postulated by Section 227 is to be
\nunderstood.  It only means hearing the submissions of the accused on the
\nrecord of the case as filed by the prosecution and documents submitted
\ntherewith and nothing more.  The expression ‘hearing the submissions of
\nthe accused’ cannot mean opportunity to file material to be granted to the
\naccused and thereby changing the settled law.  At the state of framing of
\ncharge hearing the submissions of the accused has to be confined to the
\nmaterial produced by the police.\n<\/p>\n
It may also be noted that, in fact, in one of the cases under
\nconsideration (SLP No.1912) the plea of alibi has been taken by the
\naccused in a case under Section 302 read with other provisions of the
\nIndian Penal Code.  We may also note that the decisions cited by learned
\ncounsel for the accused where the prosecutions under the Income Tax Act
\nhave been quashed as a result of findings in the departmental appeals
\nhave no relevance for considering the question involved in these matters.
\n\tReliance placed on behalf of the accused on some observations
\nmade in Minakshi Bala v. Sudhir Kumar and Others [(1994) 4 SCC 142]
\nto the effect that in exceptional cases the High Court can look into only
\nthose documents which are unimpeachable and can be legally translated
\ninto relevant evidence is misplaced for the purpose of considering the point
\nin issue in these matters.  If para 7 of the judgment where these
\nobservations have been made is read as a whole, it would be clear that the
\njudgment instead of supporting the contention sought to be put forth on
\nbehalf of the accused, in fact, supports the prosecution.  Para 7 of the
\naforesaid case reads as under:-\n<\/p>\n
 “If charges are framed in accordance with
\nSection 240 CrPC on a finding that a prima case
\nhas been made out – as has been done in the
\ninstant case – the persons arraigned may, if he
\nfeels aggrieved, invoke the revisional jurisdiction
\nof the High Court or the Sessions Judge to
\ncontend that the charge-sheet submitted under
\nSection 173 CrPC and documents sent with it did
\nnot disclose any ground to presume that he had
\ncommitted any offence for which he is charged
\nand the revisional court if so satisfied can quash
\nthe charges framed against him. To put it
\ndifferently, once charges are framed under
\nSections 240 CrPC the High Court in its revisional
\njurisdiction would not be justified in relying upon
\ndocuments other than those referred to in
\nSections 239 and 240 CrPC; nor would it be
\njustified in invoking its inherent jurisdiction under
\nsection 482 CrPC to quash the same except in
\nthose rare cases where forensic exigencies and
\nformidable compulsions justify such a course. We
\nhasten to add even in such exceptional cases the
\nHigh Court can look into only those documents
\nwhich are unimpeachable and can be legally
\ntranslated into relevant evidence.”\n<\/p>\n
\tIt is evident from the above that this Court was considering the rare
\nand exceptional cases where the High Court may consider unimpeachable
\nevidence while exercising jurisdiction for quashing under Section 482 of
\nthe Code.  In the present case, however, the question involved is not about
\nthe exercise of jurisdiction under Section 482 of the Code where along with
\nthe petition the accused may file unimpeachable evidence of sterling
\nquality and on that basis seek quashing, but is about the right claimed by
\nthe accused to produce material at the stage of framing of charge.
\n\tReliance has also been placed on decision in the case of P.S.Rajya
\nv. State of Bihar [(1996) 9 SCC 1] where this court rejected the
\ncontention urged on behalf of the State that the points on which the
\naccused was seeking quashing of criminal proceedings could be
\nestablished by giving evidence at appropriate time and no case had been
\nmade out for quashing the charge itself.  The charge was quashed by this
\nCourt.  In this case too only on peculiar facts of the case, this Court came
\nto the conclusion that the criminal proceedings initiated against the
\nappellant-accused could not be pursued.  Those peculiar facts have been
\nnoticed in paragraphs 14, 17, 18 and 19 of the decision.  The contention of
\nthe accused based on those peculiar facts has been noticed in para 15
\nand that of respondent that the CBI was entitled to proceed on the basis of
\nthe material available and the mere allegations made by the accused
\ncannot take the place of proof and that had to be gone into and established
\nin the final hearing, has been noticed in para 16.  After noticing those
\ncontentions and the decision in the case of State of Haryana v. Bhajan
\nLal<\/a> [1992 (Suppl.1) 335] laying down the guidelines relating to the
\nexercise of extraordinary power under Article 226 or the inherent power
\nunder Section 482 of the Code for quashing an FIR or a complaint, this
\nCourt, on the peculiar facts, came to the conclusion that the case of the
\nappellant could be brought under more than one head given in Bhajan
\nLal’s case (supra) without any difficulty so as to quash the proceedings.
\nIn this background, observations were made in para 23 on which reliance
\nhas been placed on behalf of the accused whereby rejecting the contention
\nof the State as noticed in para 16, the Court came to the conclusion that
\nthe criminal proceedings deserve to be quashed.  In this case too the
\nquestion was not about the right of the accused to file material at the stage
\nof framing charge but was about quashing of proceedings in exercise of
\npower under Section 482 of the Code.  The decision in the case of State
\nof Madhya Pradesh v. MohanLal Soni<\/a> [(2000) 6 SCC 338] sought to be
\nrelied upon on behalf of the accused is also of no assistance because in
\nthat case an earlier order of the High Court wherein trial court was directed
\nto take into consideration the documents made available by the accused
\nduring investigation while framing charge had attained finality since that
\norder was not challenged and in that view this Court came to the
\nconclusion that the trial court was bound and governed by the said
\ndirection of the High Court which had not been followed.
\n\tAs a result of aforesaid discussion, in our view, clearly the law is that
\nat the time of framing charge or taking cognizance the accused has no
\nright to produce any material.  Satish Mehra’s case holding that the trial
\ncourt has powers to consider even materials which accused may produce
\nat the stage of Section 227 of the Code has not been correctly decided.
\n\tOn behalf of the accused a contention about production of
\ndocuments relying upon Section 91 of the Code has also been made.
\nSection 91 of the Code reads as under:\n<\/p>\n
“Summons to produce document or other
\nthing.(1) Whenever any Court or any officer in
\ncharge of a police station considers that the
\nproduction of any document or other thing is
\nnecessary or desirable for the purposes of any
\ninvestigation, inquiry, trial or other proceeding
\nunder this Code by or before such Court or
\nofficer, such Court may issue a summons, or
\nsuch officer a written order, to the person in
\nwhose possession or power such document or
\nthing is believed to be, requiring him to attend and
\nproduce it, or to produce it, at the time and place
\nstated in the summons or order.\n<\/p>\n
(2)…………………………………………………………………
\n(3)…………………………………………………………………”\n<\/p>\n
\tAny document or other thing envisaged under the aforesaid
\nprovision can be ordered to be produced on finding that the same is
\n‘necessary or desirable for the purpose of investigation, inquiry, trial or
\nother proceedings under the Code’.  The first and foremost requirement of
\nthe section is about the document being necessary or desirable.  The
\nnecessity or desirability would have to be seen with reference to the stage
\nwhen a prayer is made for the production.  If any document is necessary or
\ndesirable for the defence of the accused, the question of invoking Section
\n91 at the initial stage of framing of a charge would not arise since defence
\nof the accused is not relevant at that stage. When the section refers to
\ninvestigation, inquiry, trial or other proceedings, it is to be borne in mind
\nthat under the section a police officer may move the Court for summoning
\nand production of a document as may be necessary at any of the stages
\nmentioned in the section.  In so far as the accused is concerned, his
\nentitlement to seek order under Section 91 would ordinarily not come till
\nthe stage of defence.  When the section talks of the document being
\nnecessary and desirable, it is implicit that necessity and desirability is to be
\nexamined considering the stage when such a prayer for summoning and
\nproduction is made and the party who makes it whether police or accused.
\nIf under Section 227 what is necessary and relevant is only the record
\nproduced in terms of Section 173 of the Code, the accused cannot at that
\nstage invoke Section 91 to seek production of any document to show his
\ninnocence.  Under Section 91 summons for production of document can be
\nissued by Court and under a written order an officer in charge of police
\nstation can also direct production thereof.  Section 91 does not confer any
\nright on the accused to produce document in his possession to prove his
\ndefence.  Section 91 presupposes that when the document is not produced
\nprocess may be initiated to compel production thereof.
\n\tReliance on behalf of the accused was placed on some observations
\nmade in the case of Om Parkash Sharma v. CBI, Delhi [(2000) 5 SCC
\n679].  In that case the application filed by the accused for summoning and
\nproduction of documents was rejected by the Special Judge and that order
\nwas affirmed by the High Court.  Challenging those orders before this
\nCourt, reliance was placed on behalf of the accused upon Satish Mehra’s
\ncase (supra).  The contentions based on Satish Mehra’s case have been
\nnoticed in para 4 as under:\n<\/p>\n
“The learned counsel for the appellant reiterated
\nthe stand taken before the courts below with great
\nvehemence by inviting our attention to the
\ndecision of this Court reported in Satish Mehra v.\n<\/p>\n
Delhi Admn. ((1996) 9 SCC 766) laying emphasis
\non the fact the very learned Judge in the High
\nCourt has taken a different view in such matters,
\nin the decision reported in Ashok Kaushik v. State
\n((1999) 49 DRJ 202). Mr Altaf Ahmed, the learned
\nASG for the respondents not only contended that
\nthe decisions relied upon for the appellants would
\nnot justify the claim of the appellant in this case,
\nat this stage, but also invited, extensively our
\nattention to the exercise undertaken by the courts
\nbelow to find out the relevance, desirability and
\nnecessity of those documents as well as the need
\nfor issuing any such directions as claimed at that
\nstage and consequently there was no justification
\nwhatsoever, to intervene by an interference at the
\npresent stage of the proceedings.\n<\/p>\n
In so far as Section 91 is concerned, it was rightly held that the width
\nof the powers of that section was unlimited but there were inbuilt inherent
\nlimitations as to the stage or point of time of its exercise, commensurately
\nwith the nature of proceedings as also the compulsions of necessity and
\ndesirability, to fulfill the task or achieve the object.  Before the trial court the
\nstage was to find out whether there was sufficient ground for proceeding to
\nthe next stage against the accused.  The application filed by the accused
\nunder Section 91 of the Code for summoning and production of document
\nwas dismissed and order was upheld by High Court and this Court.  But
\nobservations were made in para 6 to the effect that if the accused could
\nproduce any reliable material even at that stage which might totally affect
\neven the very sustainability of the case, a refusal to look into the material
\nso produced may result in injustice, apart from averting an exercise in
\nfutility at the expense of valuable judicial\/public time, these observations
\nare clearly obiter dicta and in any case of no consequence in view of
\nconclusion reached by us hereinbefore.  Further, the observations cannot
\nbe understood to mean that the accused has a right to produce any
\ndocument at stage of framing of charge having regard to the clear mandate
\nof Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in
\nChapter 19.\n<\/p>\n
\tWe are of the view that jurisdiction under Section 91 of the Code
\nwhen invoked by accused the necessity and desirability would have to be
\nseen by the Court in the context of the purpose  investigation, inquiry, trial
\nor other proceedings under the Code.  It would also have to be borne in
\nmind that law does not permit a roving or fishing inquiry.
\nRegarding the argument of accused having to face the trial despite
\nbeing in a position to produce material of unimpeachable character of
\nsterling quality, the width of the powers of the High Court under Section
\n482 of the Code and Article 226 of Constitution of India is unlimited
\nwhereunder in the interests of justice the High Court can make such orders
\nas may be necessary to prevent abuse of the process of any Court or
\notherwise to secure the ends of justice within the parameters laid down in
\nBhajan Lal’s case.\n<\/p>\n
\tThe result of the aforesaid discussion is that Criminal Appeal No.497
\nof 2001 is allowed, the impugned judgment of the High Court is set aside.
\nThe trial court is directed to proceed from the stage of framing of charge.
\nHaving regard to the fact that the charges were framed about 11 years ago
\nwe direct the trial court to expeditiously conclude the trial and as far as
\npossible it shall be held from day-to-day.\n<\/p>\n
Special Leave Petition (Crl.) No.1912 of 2003 and Criminal Appeal
\nNo.46 of 2004 are dismissed.  Since Special Leave Petition relates to an
\noccurrence which took about 3 years back and the offence is under
\nSection 302 Indian Penal Code and in Criminal Appeal No.46 of 2004
\ncharges were framed about 2 years ago, we direct that the trial in these
\ncases shall also be concluded expeditiously.  All the appeals are disposed
\nof accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Orissa vs Debendra Nath Padhi on 29 November, 2004 Author: Y.K.Sabharwal Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee CASE NO.: Appeal (crl.) 497 of 2001 PETITIONER: State of Orissa RESPONDENT: Debendra Nath Padhi DATE OF JUDGMENT: 29\/11\/2004 BENCH: Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-6184","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Orissa vs Debendra Nath Padhi on 29 November, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-orissa-vs-debendra-nath-padhi-on-29-november-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Orissa vs Debendra Nath Padhi on 29 November, 2004 - 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